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Dhagamwar Narsingh Vs. S. S. Grewal | a Welfare Officer within that rule and refused to entertain his appeal. 2. The appellant then moved the High Court at Patna under Art. 226 of the Constitution for an appropriate writ directing the Chief Inspector to decide the appeal. The High Court dismissed the appellants petition agreeing substantially with the view taken by the Chief Inspector. The appellant has now appealed to this Court against the judgment of the High Court. 3. The Mines Rules, 1955 were framed under the Mines Act, 1952, and came into force on July 2, 1955. We are principally concerned with the proviso to R. 74(2) but this has to be read with R. 72. The relevant portions of these rules are set out below:- Rule 72. (1) In every mine wherein 500 or more persons are ordinarily employed there shall be appointed at least one Welfare Officer :- Provided that if the number of persons ordinarily employed exceeds 2000, there shall be appointed additional Welfare Officers on a scale of one for every 2000 persons or fractions thereof. (2) No person shall act as a Welfare Officer of a mine unless he possesses- (Here certain qualifications are specified) Provided that in case of a person already in service as a Welfare Officer in a mine the above qualifications may, with the approval of the Chief Inspector be relaxed. (3) ........ ....... ....... ........ (4) A written notice of every such appointment. . . . . . . . and of the date thereof shall be sent by the owner, agent or manager to the Chief Inspector within 7 days from the date of such appointment..... Rule 73. Duties of Welfare Officers: ........ ....... ....... ................ (Here certain duties are prescribed) Rule 74. (1). .. . . . . . .. . . . . . .......... (2) The conditions of service of a Welfare Officer shall be the same as of other members of the staff of corresponding status in the mine; Provided that, in the case of discharge or dismissal, the Welfare Officer, shall have a right of appeal to the Chief Inspector whose decision thereon shall be final and binding upon the owner, agent or manager of the mine as the case may be. The Chief Inspector mentioned in these Rules is the Chief Inspector of Mines in India. 4. If the appellant was not a Welfare Officer within the proviso to R. 74(2) as the Company contends, then, of course, no appeal by him lay under it. He would then clearly not be entitled to the writ he asked. The question therefore is whether the appellant was a Welfare Officer within the rule and is really one of construction of it. 5. We desire now to point out certain facts as to which there is no controversy. First, both the Act and the Rules came into force long after the appellant had been appointed by the Company. Secondly, no relaxation of qualifications had been sought from or granted by the Chief Inspector with respect to the appellant under the proviso to sub-r. (2) of R. 72 after the Rules came into force. Thirdly, no notice as contemplated in R. 72 (4) had been given concerning the appellant. It appears that the Chief Inspector found that the appellant "was performing duties akin to those of Welfare Officers contemplated by R. 73 and he was qualified to work as a Welfare Officer." We propose to deal with this appeal on the basis of these findings. 6. Dealing with the contention noticed by the Chief Inspector and the High Court that a Welfare Officer under R. 74 (2) is one who is appointed after the Rules came into force. Mr. Sen for the appellant said that a person like the appellant who had the requisite qualifications and was discharging the duties prescribed for Welfare Officer from before the Rules came into force, would be a Welfare Officer within them. He pointed out that the proviso to sub-r. (2) of R. 72 clearly contemplated the continuance of the service of such a person as a Welfare Officer with relaxation where such was necessary and was granted. He also said that sub-r. (4) of R. 72 was inapplicable to such a person because he had been appointed long ago and because the proviso to R. 72 (2) indicated that its application was not intended. We do not it necessary to pronounce on this question in the present case. In our view, the appeal must fail even if Mr. Sens contention is right and that for another reason. 7. We observe that the Rules do not define the term "Welfare Officer. But we think it is beyond doubt-and indeed the contrary has not been contended-that the Welfare Officer mentioned in the proviso to R. 74(2) is the same officer as is mentioned in sub-r. (1) of R. 72. Now it is, in our view, perfectly plain that the Welfare Officer contemplated by R. 72 (1) is such an officer of one mine. The rule says that there shall be at least one Welfare Officer for every mine employing between 500 and 2000 persons and this makes any other view impossible. As we understood Mr. Sen, he also accepted that the Welfare Officer contemplated is one appointed in respect of one mine. Now, the appellant was, on his own case, the Welfare Officer of several mines of the Company and not of one of such mines only. Therefore, we think that he was not a Welfare Officer within R. 72(1) and hence not within the proviso to R. 74(2). 8. But Mr. Sen contends that the appellant might be considered as having been severally and independently appointed the Welfare Officer of each of the Companys several collieries in his charge. We this that that would be an impossible view to take. One appointment cannot be treated as several appointments and it is not in dispute that the appellant had only one appointment for all the Companys collieries. | 0[ds]5. We desire now to point out certain facts as to which there is no controversy. First, both the Act and the Rules came into force long after the appellant had been appointed by the Company. Secondly, no relaxation of qualifications had been sought from or granted by the Chief Inspector with respect to the appellant under the proviso to sub-r. (2) of R. 72 after the Rules came into force. Thirdly, no notice as contemplated in R. 72 (4) had been given concerning the appellant. It appears that the Chief Inspector found that the appellant "was performing duties akin to those of Welfare Officers contemplated by R. 73 and he was qualified to work as a Welfare Officer." We propose to deal with this appeal on the basis of these findingsWe do not it necessary to pronounce on this question in the present case. In our view, the appeal must fail even if Mr. Sens contention is right and that for another reason7. We observe that the Rules do not define the term "Welfare Officer. But we think it is beyond doubt-and indeed the contrary has not been contended-that the Welfare Officer mentioned in the proviso to R. 74(2) is the same officer as is mentioned in sub-r. (1) of R. 72. Now it is, in our view, perfectly plain that the Welfare Officer contemplated by R. 72 (1) is such an officer of one mine. The rule says that there shall be at least one Welfare Officer for every mine employing between 500 and 2000 persons and this makes any other view impossible. As we understood Mr. Sen, he also accepted that the Welfare Officer contemplated is one appointed in respect of one mine. Now, the appellant was, on his own case, the Welfare Officer of several mines of the Company and not of one of such mines only. Therefore, we think that he was not a Welfare Officer within R. 72(1) and hence not within the proviso to R. 74(2)We this that that would be an impossible view to take. One appointment cannot be treated as several appointments and it is not in dispute that the appellant had only one appointment for all the Companys collieries | 0 | 1,281 | 421 | ### Instruction:
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a Welfare Officer within that rule and refused to entertain his appeal. 2. The appellant then moved the High Court at Patna under Art. 226 of the Constitution for an appropriate writ directing the Chief Inspector to decide the appeal. The High Court dismissed the appellants petition agreeing substantially with the view taken by the Chief Inspector. The appellant has now appealed to this Court against the judgment of the High Court. 3. The Mines Rules, 1955 were framed under the Mines Act, 1952, and came into force on July 2, 1955. We are principally concerned with the proviso to R. 74(2) but this has to be read with R. 72. The relevant portions of these rules are set out below:- Rule 72. (1) In every mine wherein 500 or more persons are ordinarily employed there shall be appointed at least one Welfare Officer :- Provided that if the number of persons ordinarily employed exceeds 2000, there shall be appointed additional Welfare Officers on a scale of one for every 2000 persons or fractions thereof. (2) No person shall act as a Welfare Officer of a mine unless he possesses- (Here certain qualifications are specified) Provided that in case of a person already in service as a Welfare Officer in a mine the above qualifications may, with the approval of the Chief Inspector be relaxed. (3) ........ ....... ....... ........ (4) A written notice of every such appointment. . . . . . . . and of the date thereof shall be sent by the owner, agent or manager to the Chief Inspector within 7 days from the date of such appointment..... Rule 73. Duties of Welfare Officers: ........ ....... ....... ................ (Here certain duties are prescribed) Rule 74. (1). .. . . . . . .. . . . . . .......... (2) The conditions of service of a Welfare Officer shall be the same as of other members of the staff of corresponding status in the mine; Provided that, in the case of discharge or dismissal, the Welfare Officer, shall have a right of appeal to the Chief Inspector whose decision thereon shall be final and binding upon the owner, agent or manager of the mine as the case may be. The Chief Inspector mentioned in these Rules is the Chief Inspector of Mines in India. 4. If the appellant was not a Welfare Officer within the proviso to R. 74(2) as the Company contends, then, of course, no appeal by him lay under it. He would then clearly not be entitled to the writ he asked. The question therefore is whether the appellant was a Welfare Officer within the rule and is really one of construction of it. 5. We desire now to point out certain facts as to which there is no controversy. First, both the Act and the Rules came into force long after the appellant had been appointed by the Company. Secondly, no relaxation of qualifications had been sought from or granted by the Chief Inspector with respect to the appellant under the proviso to sub-r. (2) of R. 72 after the Rules came into force. Thirdly, no notice as contemplated in R. 72 (4) had been given concerning the appellant. It appears that the Chief Inspector found that the appellant "was performing duties akin to those of Welfare Officers contemplated by R. 73 and he was qualified to work as a Welfare Officer." We propose to deal with this appeal on the basis of these findings. 6. Dealing with the contention noticed by the Chief Inspector and the High Court that a Welfare Officer under R. 74 (2) is one who is appointed after the Rules came into force. Mr. Sen for the appellant said that a person like the appellant who had the requisite qualifications and was discharging the duties prescribed for Welfare Officer from before the Rules came into force, would be a Welfare Officer within them. He pointed out that the proviso to sub-r. (2) of R. 72 clearly contemplated the continuance of the service of such a person as a Welfare Officer with relaxation where such was necessary and was granted. He also said that sub-r. (4) of R. 72 was inapplicable to such a person because he had been appointed long ago and because the proviso to R. 72 (2) indicated that its application was not intended. We do not it necessary to pronounce on this question in the present case. In our view, the appeal must fail even if Mr. Sens contention is right and that for another reason. 7. We observe that the Rules do not define the term "Welfare Officer. But we think it is beyond doubt-and indeed the contrary has not been contended-that the Welfare Officer mentioned in the proviso to R. 74(2) is the same officer as is mentioned in sub-r. (1) of R. 72. Now it is, in our view, perfectly plain that the Welfare Officer contemplated by R. 72 (1) is such an officer of one mine. The rule says that there shall be at least one Welfare Officer for every mine employing between 500 and 2000 persons and this makes any other view impossible. As we understood Mr. Sen, he also accepted that the Welfare Officer contemplated is one appointed in respect of one mine. Now, the appellant was, on his own case, the Welfare Officer of several mines of the Company and not of one of such mines only. Therefore, we think that he was not a Welfare Officer within R. 72(1) and hence not within the proviso to R. 74(2). 8. But Mr. Sen contends that the appellant might be considered as having been severally and independently appointed the Welfare Officer of each of the Companys several collieries in his charge. We this that that would be an impossible view to take. One appointment cannot be treated as several appointments and it is not in dispute that the appellant had only one appointment for all the Companys collieries.
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5. We desire now to point out certain facts as to which there is no controversy. First, both the Act and the Rules came into force long after the appellant had been appointed by the Company. Secondly, no relaxation of qualifications had been sought from or granted by the Chief Inspector with respect to the appellant under the proviso to sub-r. (2) of R. 72 after the Rules came into force. Thirdly, no notice as contemplated in R. 72 (4) had been given concerning the appellant. It appears that the Chief Inspector found that the appellant "was performing duties akin to those of Welfare Officers contemplated by R. 73 and he was qualified to work as a Welfare Officer." We propose to deal with this appeal on the basis of these findingsWe do not it necessary to pronounce on this question in the present case. In our view, the appeal must fail even if Mr. Sens contention is right and that for another reason7. We observe that the Rules do not define the term "Welfare Officer. But we think it is beyond doubt-and indeed the contrary has not been contended-that the Welfare Officer mentioned in the proviso to R. 74(2) is the same officer as is mentioned in sub-r. (1) of R. 72. Now it is, in our view, perfectly plain that the Welfare Officer contemplated by R. 72 (1) is such an officer of one mine. The rule says that there shall be at least one Welfare Officer for every mine employing between 500 and 2000 persons and this makes any other view impossible. As we understood Mr. Sen, he also accepted that the Welfare Officer contemplated is one appointed in respect of one mine. Now, the appellant was, on his own case, the Welfare Officer of several mines of the Company and not of one of such mines only. Therefore, we think that he was not a Welfare Officer within R. 72(1) and hence not within the proviso to R. 74(2)We this that that would be an impossible view to take. One appointment cannot be treated as several appointments and it is not in dispute that the appellant had only one appointment for all the Companys collieries
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State Bank Of India Thr. General Manager Vs. National Housing Bank | facts are disclosed. But disclosure of full facts might (though we are almost certain) lead to trouble to somebody or the other in the management of the plaintiff-Bank or perhaps both the Banks and God knows who else. It is equally irresponsible on the part of the 1st defendant to have acted on the instructions of the 2nd defendant without there being any legal authority in writing on the part of the 2nd defendant to issue instructions regarding the disbursement of the proceeds of the cheque in question. We may not be far from truth if we draw an inference that such payments were obviously made on the unwritten instructions by somebody in the plaintiff bank. The whole attempt of both the banks is to shield the officers on either side taking refuge under attractive legal pleas – which if examined in the context of the limited facts pleaded give a picture that the suit transaction is an innocuous transaction which unfortunately for the country is not. In our opinion the suit is a sheer abuse of the legal process. 70. On the other hand, the dispute such as the one on hand, where the contesting parties are either organs of the State or its instrumentalities, is better resolved through a Committee of Secretaries of the Government of India or the States, as the case may be, as directed by this Court on more than one occasion. Unfortunately, such orders remain unimplemented. In fact, it appears from the judgment under appeal that even in this case the Special Court had directed such a settlement without any success. The Special Court in paras 2 to 5 of the judgment under appeal elaborately recorded the legal requirement of settling the dispute to the Committee of Secretaries and efforts made by the Special Court to have the matter so settled and eventually directed – “Officer on Special Duty is directed to send a copy of this judgment to the Ministry of Law and Ministry of Finance and the Governor of Reserve Bank of India with a request to take action on this and on the aspect set out in paras 27, 73, 74 , ………….” 71. Even during the pendency of the instant appeal, this Court on 18.02.2009, passed an order to the following effect: “These appeals are filed by the State Bank of Saurashtra against the National Housing Bank and others. Having regard to the dispute between these two Public Sector Banks, we feel it appropriate that the matter be considered at the level of the Finance Minister, Union of India to explore the possibility as to whether there could be any settlement between the parties. Therefore, we adjourn these appeals and request the Finance Minister, Union of India to look into the matter and suggest any possibility of settlement between the parties. Parties would be at liberty to bring this order to the notice of the Finance Minister, Union of India.Adjourned by three months.” Still the Government did not think it fit to settle the matter. 72. By a letter dated 11th June, 2010, signed by one Raman Kumar Gaur, Under Secretary to the Government of India, Ministry of Finance, Department of Financial Services, addressed to the Registrar of this Court, it was informed as under: “8. The Special Court had gone into all aspects of the matter including the transaction of NHB with Standard Chartered Bank and Canfina before arriving at his conclusions. The Hon’ble Court has also gone into the alteration in the cheque, the initial stand of NHB before the Court etc. The Court has even awarded costs to NHB and others looking into the conduct of SBS before it. The Hon’ble Court has also observed that each transaction has to be dealt with independently and did not agree with the contention of SBS about satisfaction of its liability by delivery of bonds by Harshad Mehta to Canfina. As far as an amicable solution is concerned, all along SBI has insisted that it be given 50% of total amount received by NHB for which NHB is not agreeable. Thus, it was felt that the Special Court has looked into all the above aspects of the matter and has given its well reasoned judgement. It has therefore been decided, with the approval of Finance Minister, that there seems to be no reason to suggest any change in the decision of the Special Court.” A reading of the letter demonstrates utter callousness on the part of the Government in dealing with the matter. We must also place our disgust at the audacity of the author of the letter to state- “that there seems to be no reason to suggest any change in the decision of the Special Court.” 73. Apart from the question of propriety of the language employed in the said suggestion, the content of the letter indicates that both the plaintiff and respondent Banks simply reiterated their respective stands before the Committee of Secretaries. No attempt appears to have been made by the Government to find out the truth as to (1) how the plaintiff Bank parted with a high denomination cheque and gave custody of the same to Harshad Mehta and (2) as to how the first defendant Bank paid the various amounts to the dictation of Harshad Mehta in the absence of any authorisation by the plaintiff Bank. Be that as it may, if really the Government believed that the judgment of the Special Court does not require any interference, nothing stopped the Government from directing both the Banks to withdraw their appeals before this Court.74. The whole exercise appears to be an eye wash. A thinly veiled scorn for the orders of this Court.75. The professed purpose of the Special Courts Act - the back drop of the scandal that shook the nation - and the manner in which the litigation was conducted coupled with the absolute indifference of the Government to get at the truth only demonstrates the duplicity with which Governments can act. | 0[ds]62. In the background of the above discussed pleadings and evidence, we are of the opinion the suit is required to be dismissed on the ground that there is no evidence led by the plaintiff to establish its case.63. We must also record our disapproval of the finding recorded by the Special Court that the plaintiff did not suppress the truth. We are of the opinion that the plaintiff approached the Special Court with unclean hands by suppressing the relevant material. We shall first discuss the nature of the suppression and then examine the legal consequences that should follow.64. As already noticed that the plaint, as originally filed, stated that the cheque in question was drawnfavour of the 1st defendant in respect of the sale by the 1st defendant to the plaintiff of 9% IRFC Bonds of face value Rs.100But subsequently the plaint was amended omitting the reference of the purchase of the abovementioned IRFC Bonds.65. It is pertinent to note that the defendants 1, 2 and 5 pleaded and the defendants 1 and 2 adduced oral evidence to prove that the plaintiff incurred an obligation to deliver IRFC Bonds of face value Rs.100 crores on 3.1.1992 to CANFINA Ltd. It, therefore, appears that in order to discharge its obligation to CANFINA to deliver the abovementioned Bonds, the plaintiff sought to purchase the Bonds from the 1st defendant and drew the cheque in question. We may also note that such a stand is not taken by the defendants for the first time in the written statement. Plaintiffs were aware of the stand of the 1st defendant in the light of the correspondence that took place between the 1st defendant and the plaintiff prior to the filing of the suit. Such knowledge on the part of the plaintiffs is obvious from the averments made in the plaint itself. In the background of such a stand of the 1st defendant and the stand of the plaintiff in the unamended plaint that its record revealed that the cheque in question was issuedrespect of the sale by the 1st defendant to the plaintiff of 9% IRFCthe plaintiff owes a basic duty to the Court to explain in the plaint and prove by producing its records in evidence (i) as to how such a transaction came to be entered in its records, who was responsible for such entry, (ii) who took the decision to purchase the IRFC Bonds from the 1st defendant, (iii) who signed the cheque in question and (iv) how the 2nd defendant got custody of the cheque. None of this information is given in the plaint.66. On the other hand, we cannot ignore the pleading of the 3rd defendant who took a categoric stand that the decision such as the one to purchase or sell securities are taken at a higher level of the plaintiff-Bank. It is only on the instructions of the appropriate higher authorities, cheques such as the one in question, are prepared.67. Assuming for the sake of argument that the cheque in question came to be handed over to the 2nd defendant without the knowledge of the higher authorities, it is difficult to believe that those who are responsible for the management of the plaintiff bank at a higher level did not bother to verify till the scandal broke out as to how a debit of Rs. 95 crores came to be made to the account of the plaintiff-Bank - we are unable to believe that such a failure is only an accident. Even the judgment under appeal records that theThe suppression of the original case coupled with the very fact that the 1st defendant paid various amounts in accordance with the instructions of the 2nd defendant after encashing the cheque in question coupled with the 1stconsistent stand that the cheque was issued for the benefit of the 2nd defendant, leads us to a possible inference that the 1st defendant acted on the instructions of some body high up in the administration of the plaintiff Bank. Neither of the banks explained the genesis of such practice. But from the very history of this litigation and the background in which the Special Court Act came to be passed, we can safely presume that both the banks herein, (along with other banks), did not follow any procedure when it came to the dealings in which the 2nd defendant was involved. Eventually when the bubble burst, everybody tried to disown the responsibility trying to project an image of innocence. The entire effort of the plaintiff in the suit, according to us, is to suppress all the relevant information we are convinced that such a process is resorted to in order to shield the delinquent officers of the bank (whoever they are) who are responsible for such dealings by taking shelter under the legal principles such as unjust enrichment and moneys had and received etc. to recover the money paid by the plaintiff to the 1st defendant through the cheque in question.69. Whether the payment in question was made in discharge of any existing legal obligation such as the one set up by the defendants 1 and 2 or not could be known only when the full facts are disclosed. But disclosure of full facts might (though we are almost certain) lead to trouble to somebody or the other in the management of the plaintiff-Bank or perhaps both the Banks and God knows who else. It is equally irresponsible on the part of the 1st defendant to have acted on the instructions of the 2nd defendant without there being any legal authority in writing on the part of the 2nd defendant to issue instructions regarding the disbursement of the proceeds of the cheque in question. We may not be far from truth if we draw an inference that such payments were obviously made on the unwritten instructions by somebody in the plaintiff bank. The whole attempt of both the banks is to shield the officers on either side taking refuge under attractive legal pleas – which if examined in the context of the limited facts pleaded give a picture that the suit transaction is an innocuous transaction which unfortunately for the country is not. In our opinion the suit is a sheer abuse of the legal process.Apart from the question of propriety of the language employed in the said suggestion, the content of the letter indicates that both the plaintiff and respondent Banks simply reiterated their respective stands before the Committee of Secretaries. No attempt appears to have been made by the Government to find out the truth as to (1) how the plaintiff Bank parted with a high denomination cheque and gave custody of the same to Harshad Mehta and (2) as to how the first defendant Bank paid the various amounts to the dictation of Harshad Mehta in the absence of any authorisation by the plaintiff Bank. Be that as it may, if really the Government believed that the judgment of the Special Court does not require any interference, nothing stopped the Government from directing both the Banks to withdraw their appeals before this Court.74. The whole exercise appears to be an eye wash. A thinly veiled scorn for the orders of this Court.75. The professed purpose of the Special Courts Act - the back drop of the scandal that shook the nation - and the manner in which the litigation was conducted coupled with the absolute indifference of the Government to get at the truth only demonstrates the duplicity with which Governments can act. | 0 | 11,816 | 1,336 | ### Instruction:
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facts are disclosed. But disclosure of full facts might (though we are almost certain) lead to trouble to somebody or the other in the management of the plaintiff-Bank or perhaps both the Banks and God knows who else. It is equally irresponsible on the part of the 1st defendant to have acted on the instructions of the 2nd defendant without there being any legal authority in writing on the part of the 2nd defendant to issue instructions regarding the disbursement of the proceeds of the cheque in question. We may not be far from truth if we draw an inference that such payments were obviously made on the unwritten instructions by somebody in the plaintiff bank. The whole attempt of both the banks is to shield the officers on either side taking refuge under attractive legal pleas – which if examined in the context of the limited facts pleaded give a picture that the suit transaction is an innocuous transaction which unfortunately for the country is not. In our opinion the suit is a sheer abuse of the legal process. 70. On the other hand, the dispute such as the one on hand, where the contesting parties are either organs of the State or its instrumentalities, is better resolved through a Committee of Secretaries of the Government of India or the States, as the case may be, as directed by this Court on more than one occasion. Unfortunately, such orders remain unimplemented. In fact, it appears from the judgment under appeal that even in this case the Special Court had directed such a settlement without any success. The Special Court in paras 2 to 5 of the judgment under appeal elaborately recorded the legal requirement of settling the dispute to the Committee of Secretaries and efforts made by the Special Court to have the matter so settled and eventually directed – “Officer on Special Duty is directed to send a copy of this judgment to the Ministry of Law and Ministry of Finance and the Governor of Reserve Bank of India with a request to take action on this and on the aspect set out in paras 27, 73, 74 , ………….” 71. Even during the pendency of the instant appeal, this Court on 18.02.2009, passed an order to the following effect: “These appeals are filed by the State Bank of Saurashtra against the National Housing Bank and others. Having regard to the dispute between these two Public Sector Banks, we feel it appropriate that the matter be considered at the level of the Finance Minister, Union of India to explore the possibility as to whether there could be any settlement between the parties. Therefore, we adjourn these appeals and request the Finance Minister, Union of India to look into the matter and suggest any possibility of settlement between the parties. Parties would be at liberty to bring this order to the notice of the Finance Minister, Union of India.Adjourned by three months.” Still the Government did not think it fit to settle the matter. 72. By a letter dated 11th June, 2010, signed by one Raman Kumar Gaur, Under Secretary to the Government of India, Ministry of Finance, Department of Financial Services, addressed to the Registrar of this Court, it was informed as under: “8. The Special Court had gone into all aspects of the matter including the transaction of NHB with Standard Chartered Bank and Canfina before arriving at his conclusions. The Hon’ble Court has also gone into the alteration in the cheque, the initial stand of NHB before the Court etc. The Court has even awarded costs to NHB and others looking into the conduct of SBS before it. The Hon’ble Court has also observed that each transaction has to be dealt with independently and did not agree with the contention of SBS about satisfaction of its liability by delivery of bonds by Harshad Mehta to Canfina. As far as an amicable solution is concerned, all along SBI has insisted that it be given 50% of total amount received by NHB for which NHB is not agreeable. Thus, it was felt that the Special Court has looked into all the above aspects of the matter and has given its well reasoned judgement. It has therefore been decided, with the approval of Finance Minister, that there seems to be no reason to suggest any change in the decision of the Special Court.” A reading of the letter demonstrates utter callousness on the part of the Government in dealing with the matter. We must also place our disgust at the audacity of the author of the letter to state- “that there seems to be no reason to suggest any change in the decision of the Special Court.” 73. Apart from the question of propriety of the language employed in the said suggestion, the content of the letter indicates that both the plaintiff and respondent Banks simply reiterated their respective stands before the Committee of Secretaries. No attempt appears to have been made by the Government to find out the truth as to (1) how the plaintiff Bank parted with a high denomination cheque and gave custody of the same to Harshad Mehta and (2) as to how the first defendant Bank paid the various amounts to the dictation of Harshad Mehta in the absence of any authorisation by the plaintiff Bank. Be that as it may, if really the Government believed that the judgment of the Special Court does not require any interference, nothing stopped the Government from directing both the Banks to withdraw their appeals before this Court.74. The whole exercise appears to be an eye wash. A thinly veiled scorn for the orders of this Court.75. The professed purpose of the Special Courts Act - the back drop of the scandal that shook the nation - and the manner in which the litigation was conducted coupled with the absolute indifference of the Government to get at the truth only demonstrates the duplicity with which Governments can act.
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written statement. Plaintiffs were aware of the stand of the 1st defendant in the light of the correspondence that took place between the 1st defendant and the plaintiff prior to the filing of the suit. Such knowledge on the part of the plaintiffs is obvious from the averments made in the plaint itself. In the background of such a stand of the 1st defendant and the stand of the plaintiff in the unamended plaint that its record revealed that the cheque in question was issuedrespect of the sale by the 1st defendant to the plaintiff of 9% IRFCthe plaintiff owes a basic duty to the Court to explain in the plaint and prove by producing its records in evidence (i) as to how such a transaction came to be entered in its records, who was responsible for such entry, (ii) who took the decision to purchase the IRFC Bonds from the 1st defendant, (iii) who signed the cheque in question and (iv) how the 2nd defendant got custody of the cheque. None of this information is given in the plaint.66. On the other hand, we cannot ignore the pleading of the 3rd defendant who took a categoric stand that the decision such as the one to purchase or sell securities are taken at a higher level of the plaintiff-Bank. It is only on the instructions of the appropriate higher authorities, cheques such as the one in question, are prepared.67. Assuming for the sake of argument that the cheque in question came to be handed over to the 2nd defendant without the knowledge of the higher authorities, it is difficult to believe that those who are responsible for the management of the plaintiff bank at a higher level did not bother to verify till the scandal broke out as to how a debit of Rs. 95 crores came to be made to the account of the plaintiff-Bank - we are unable to believe that such a failure is only an accident. Even the judgment under appeal records that theThe suppression of the original case coupled with the very fact that the 1st defendant paid various amounts in accordance with the instructions of the 2nd defendant after encashing the cheque in question coupled with the 1stconsistent stand that the cheque was issued for the benefit of the 2nd defendant, leads us to a possible inference that the 1st defendant acted on the instructions of some body high up in the administration of the plaintiff Bank. Neither of the banks explained the genesis of such practice. But from the very history of this litigation and the background in which the Special Court Act came to be passed, we can safely presume that both the banks herein, (along with other banks), did not follow any procedure when it came to the dealings in which the 2nd defendant was involved. Eventually when the bubble burst, everybody tried to disown the responsibility trying to project an image of innocence. The entire effort of the plaintiff in the suit, according to us, is to suppress all the relevant information we are convinced that such a process is resorted to in order to shield the delinquent officers of the bank (whoever they are) who are responsible for such dealings by taking shelter under the legal principles such as unjust enrichment and moneys had and received etc. to recover the money paid by the plaintiff to the 1st defendant through the cheque in question.69. Whether the payment in question was made in discharge of any existing legal obligation such as the one set up by the defendants 1 and 2 or not could be known only when the full facts are disclosed. But disclosure of full facts might (though we are almost certain) lead to trouble to somebody or the other in the management of the plaintiff-Bank or perhaps both the Banks and God knows who else. It is equally irresponsible on the part of the 1st defendant to have acted on the instructions of the 2nd defendant without there being any legal authority in writing on the part of the 2nd defendant to issue instructions regarding the disbursement of the proceeds of the cheque in question. We may not be far from truth if we draw an inference that such payments were obviously made on the unwritten instructions by somebody in the plaintiff bank. The whole attempt of both the banks is to shield the officers on either side taking refuge under attractive legal pleas – which if examined in the context of the limited facts pleaded give a picture that the suit transaction is an innocuous transaction which unfortunately for the country is not. In our opinion the suit is a sheer abuse of the legal process.Apart from the question of propriety of the language employed in the said suggestion, the content of the letter indicates that both the plaintiff and respondent Banks simply reiterated their respective stands before the Committee of Secretaries. No attempt appears to have been made by the Government to find out the truth as to (1) how the plaintiff Bank parted with a high denomination cheque and gave custody of the same to Harshad Mehta and (2) as to how the first defendant Bank paid the various amounts to the dictation of Harshad Mehta in the absence of any authorisation by the plaintiff Bank. Be that as it may, if really the Government believed that the judgment of the Special Court does not require any interference, nothing stopped the Government from directing both the Banks to withdraw their appeals before this Court.74. The whole exercise appears to be an eye wash. A thinly veiled scorn for the orders of this Court.75. The professed purpose of the Special Courts Act - the back drop of the scandal that shook the nation - and the manner in which the litigation was conducted coupled with the absolute indifference of the Government to get at the truth only demonstrates the duplicity with which Governments can act.
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K. AMARNATH REDDY Vs. CHAIRMAN & M.D. A.P.S.P.D.C.L.LTD.&ORS.E | to the permission of the government vide letter No.565/Ser/2011 dated 15.6.2011 is illegal and the same are set aside. c). The respondents are directed to review the entire selection process strictly in terms of this judgment and the afore said declarations and pass appropriate orders in accordance with law within a period of eight weeks from the date of receipt of copy of this order. d). The respondents are directed to fill up 7319 posts of JLM that arose pursuant to the permission of the government vide letter No. 565/Ser/2011 dated 15.6.2011 by issuing the notifications / calling for applications from the eligible candidates, of course, by giving preference to the contract labour as per rules.?Aggrieved by the said judgment, the above appeals are filed. 8. We have heard the learned counsel for the parties. The selection and appointment to 7114 posts of Junior Linemen were approved by a judgment dated 10.11.2009 of the Division Bench in Writ Appeal 1434 of 2008 and Batch. Their services have also been regularized. The directions issued by the High Court in the impugned judgment pertaining to the selection of 7114 Junior Linemen pursuant to the advertisement dated 08.06.2006/ 20.10.2006 is not justified. No such directions could be issued especially after the judgment of another Division Bench approving appointments of 7114 Junior Linemen became final. The High Court is right in holding that appointments could not have been made to posts beyond the 7114 posts that were advertised. However, the High Court ought to have considered that the submission made by the learned Advocate General regarding the imminent disruption of essential services was taken into account by an earlier Division Bench which permitted the filling up of posts beyond the 7114 posts which were advertised. On the basis of the submission of the learned Advocate General and the judgment of the High Court in Writ Appeal 1434 of 2008 and Batch, persons who participated in the selections but could not be appointed in view of condition mentioned in Clause 6 (iv)(c) of the amended notification dated 20.10.2006 were also appointed as contract labourers and their services were regularised. 9. A perusal of the declarations and directions in the impugned judgment would show that the High Court conducted a scrutiny of the selections made pursuant to the notifications dated 08.06.2006/20.10.2006 to 7114 posts of Junior Linemen. The submission made by the learned Senior Counsel appearing for the parties is that the appointments made to posts beyond 7114 posts that were advertised on 08.06.2006/20.10.2006 were by way of implementation of the directions issued by a Division Bench of the High Court on 10.11.2009 in Writ Appeal 1434 of 2008 and Batch. Therefore, according to them, the finding of the High Court that appointments made to posts beyond those that were advertised is not correct. The directions issued by the High Court are:-?Therefore, taking the aforesaid undertakings of the Appellant-Distribution Companies on record, we direct the Appellant Companies to appoint all the Respondents/Writ Petitioners, who submitted their applications pursuant to the notifications dated 8.6.2006 and the other dates, issued by the various appellant companies, and who have passed the pole climbing test and fulfilled the other eligibility criterion for appointment as Junior Linemen, without reference to and without insisting upon the fulfillment of Condition No.6 (iv) (c) of the revised notification dated 20.10.2006 within two months from the date of receipt of a copy of this order. We also make it clear that this direction would be applicable to all those candidates, who have not approached this Court but who had applied in pursuance of the aforementioned notifications, subject to passing of the pole climbing test and fulfillment of eligibility criteria. We however make it clear that the persons who have not applied in pursuance of the notifications dated 8.6.2006 and the other dates and who have not subjected themselves to the selection process have no right whatsoever to claim that they are entitled for such appointment. We also make it clear that all the selected and appointed respondents-Writ Petitioners and others similarly situated would be entitled for all benefits on par with the persons who have been appointed as Junior Linemen as per Condition No.6 (iv)(c) of the revised notification, including regularization of their service as per rules and policy.?10. The said judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch was referred to in the impugned judgment. However, the High Court proceeded to adjudicate the correctness of the selections made pursuant to the notification dated 08.06.2006/20.10.2006. The judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch became final and appointments were made pursuant to the directions issued. The High Court committed a serious error in re-examining the selections to 7114 posts of Junior Linemen and other appointments made beyond the posts that were advertised, made pursuant to the advertisement dated 08.06.2006/20.10.2006. Therefore, the declarations and directions which have a bearing on the selections and appointments that are already made are not sustainable. 11. Ms. Prerna Singh, learned counsel appearing for the persons who are similarly situated to those who were directed to be appointed by the Division Bench in Writ Appeal No.1434 of 2008 and Batch submitted that some of the eligible candidates have not been appointed till date. Mr. R. Venkataramani, learned Senior Counsel appearing for the DISCOMS fairly submitted that if persons who applied for selection as Junior Lineman in 2006 were not appointed due to condition 6(iv) (c) of the revised notification dated 20.10.2006, they shall be considered for appointment. 12. Keeping in mind that appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P . TRANSCO and the DISCOMS. 13. Needless to say that, any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the law. | 1[ds]8. We have heard the learned counsel for the parties. The selection and appointment to 7114 posts of Junior Linemen were approved by a judgment dated 10.11.2009 of the Division Bench in Writ Appeal 1434 of 2008 and Batch. Their services have also been regularized. The directions issued by the High Court in the impugned judgment pertaining to the selection of 7114 Junior Linemen pursuant to the advertisement dated 08.06.2006/ 20.10.2006 is not justified. No such directions could be issued especially after the judgment of another Division Bench approving appointments of 7114 Junior Linemen became final. The High Court is right in holding that appointments could not have been made to posts beyond the 7114 posts that were advertised. However, the High Court ought to have considered that the submission made by the learned Advocate General regarding the imminent disruption of essential services was taken into account by an earlier Division Bench which permitted the filling up of posts beyond the 7114 posts which were advertised. On the basis of the submission of the learned Advocate General and the judgment of the High Court in Writ Appeal 1434 of 2008 and Batch, persons who participated in the selections but could not be appointed in view of condition mentioned in Clause 6 (iv)(c) of the amended notification dated 20.10.2006 were also appointed as contract labourers and their services were regularised.A perusal of the declarations and directions in the impugned judgment would show that the High Court conducted a scrutiny of the selections made pursuant to the notifications dated 08.06.2006/20.10.2006 to 7114 posts of Junior Linemen.The said judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch was referred to in the impugned judgment. However, the High Court proceeded to adjudicate the correctness of the selections made pursuant to the notification dated 08.06.2006/20.10.2006. The judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch became final and appointments were made pursuant to the directions issued. The High Court committed a serious error in re-examining the selections to 7114 posts of Junior Linemen and other appointments made beyond the posts that were advertised, made pursuant to the advertisement dated 08.06.2006/20.10.2006. Therefore, the declarations and directions which have a bearing on the selections and appointments that are already made are not sustainable.Keeping in mind that appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P . TRANSCO and the DISCOMS.Needless to say that, any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the | 1 | 3,275 | 481 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
to the permission of the government vide letter No.565/Ser/2011 dated 15.6.2011 is illegal and the same are set aside. c). The respondents are directed to review the entire selection process strictly in terms of this judgment and the afore said declarations and pass appropriate orders in accordance with law within a period of eight weeks from the date of receipt of copy of this order. d). The respondents are directed to fill up 7319 posts of JLM that arose pursuant to the permission of the government vide letter No. 565/Ser/2011 dated 15.6.2011 by issuing the notifications / calling for applications from the eligible candidates, of course, by giving preference to the contract labour as per rules.?Aggrieved by the said judgment, the above appeals are filed. 8. We have heard the learned counsel for the parties. The selection and appointment to 7114 posts of Junior Linemen were approved by a judgment dated 10.11.2009 of the Division Bench in Writ Appeal 1434 of 2008 and Batch. Their services have also been regularized. The directions issued by the High Court in the impugned judgment pertaining to the selection of 7114 Junior Linemen pursuant to the advertisement dated 08.06.2006/ 20.10.2006 is not justified. No such directions could be issued especially after the judgment of another Division Bench approving appointments of 7114 Junior Linemen became final. The High Court is right in holding that appointments could not have been made to posts beyond the 7114 posts that were advertised. However, the High Court ought to have considered that the submission made by the learned Advocate General regarding the imminent disruption of essential services was taken into account by an earlier Division Bench which permitted the filling up of posts beyond the 7114 posts which were advertised. On the basis of the submission of the learned Advocate General and the judgment of the High Court in Writ Appeal 1434 of 2008 and Batch, persons who participated in the selections but could not be appointed in view of condition mentioned in Clause 6 (iv)(c) of the amended notification dated 20.10.2006 were also appointed as contract labourers and their services were regularised. 9. A perusal of the declarations and directions in the impugned judgment would show that the High Court conducted a scrutiny of the selections made pursuant to the notifications dated 08.06.2006/20.10.2006 to 7114 posts of Junior Linemen. The submission made by the learned Senior Counsel appearing for the parties is that the appointments made to posts beyond 7114 posts that were advertised on 08.06.2006/20.10.2006 were by way of implementation of the directions issued by a Division Bench of the High Court on 10.11.2009 in Writ Appeal 1434 of 2008 and Batch. Therefore, according to them, the finding of the High Court that appointments made to posts beyond those that were advertised is not correct. The directions issued by the High Court are:-?Therefore, taking the aforesaid undertakings of the Appellant-Distribution Companies on record, we direct the Appellant Companies to appoint all the Respondents/Writ Petitioners, who submitted their applications pursuant to the notifications dated 8.6.2006 and the other dates, issued by the various appellant companies, and who have passed the pole climbing test and fulfilled the other eligibility criterion for appointment as Junior Linemen, without reference to and without insisting upon the fulfillment of Condition No.6 (iv) (c) of the revised notification dated 20.10.2006 within two months from the date of receipt of a copy of this order. We also make it clear that this direction would be applicable to all those candidates, who have not approached this Court but who had applied in pursuance of the aforementioned notifications, subject to passing of the pole climbing test and fulfillment of eligibility criteria. We however make it clear that the persons who have not applied in pursuance of the notifications dated 8.6.2006 and the other dates and who have not subjected themselves to the selection process have no right whatsoever to claim that they are entitled for such appointment. We also make it clear that all the selected and appointed respondents-Writ Petitioners and others similarly situated would be entitled for all benefits on par with the persons who have been appointed as Junior Linemen as per Condition No.6 (iv)(c) of the revised notification, including regularization of their service as per rules and policy.?10. The said judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch was referred to in the impugned judgment. However, the High Court proceeded to adjudicate the correctness of the selections made pursuant to the notification dated 08.06.2006/20.10.2006. The judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch became final and appointments were made pursuant to the directions issued. The High Court committed a serious error in re-examining the selections to 7114 posts of Junior Linemen and other appointments made beyond the posts that were advertised, made pursuant to the advertisement dated 08.06.2006/20.10.2006. Therefore, the declarations and directions which have a bearing on the selections and appointments that are already made are not sustainable. 11. Ms. Prerna Singh, learned counsel appearing for the persons who are similarly situated to those who were directed to be appointed by the Division Bench in Writ Appeal No.1434 of 2008 and Batch submitted that some of the eligible candidates have not been appointed till date. Mr. R. Venkataramani, learned Senior Counsel appearing for the DISCOMS fairly submitted that if persons who applied for selection as Junior Lineman in 2006 were not appointed due to condition 6(iv) (c) of the revised notification dated 20.10.2006, they shall be considered for appointment. 12. Keeping in mind that appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P . TRANSCO and the DISCOMS. 13. Needless to say that, any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the law.
### Response:
1
### Explanation:
8. We have heard the learned counsel for the parties. The selection and appointment to 7114 posts of Junior Linemen were approved by a judgment dated 10.11.2009 of the Division Bench in Writ Appeal 1434 of 2008 and Batch. Their services have also been regularized. The directions issued by the High Court in the impugned judgment pertaining to the selection of 7114 Junior Linemen pursuant to the advertisement dated 08.06.2006/ 20.10.2006 is not justified. No such directions could be issued especially after the judgment of another Division Bench approving appointments of 7114 Junior Linemen became final. The High Court is right in holding that appointments could not have been made to posts beyond the 7114 posts that were advertised. However, the High Court ought to have considered that the submission made by the learned Advocate General regarding the imminent disruption of essential services was taken into account by an earlier Division Bench which permitted the filling up of posts beyond the 7114 posts which were advertised. On the basis of the submission of the learned Advocate General and the judgment of the High Court in Writ Appeal 1434 of 2008 and Batch, persons who participated in the selections but could not be appointed in view of condition mentioned in Clause 6 (iv)(c) of the amended notification dated 20.10.2006 were also appointed as contract labourers and their services were regularised.A perusal of the declarations and directions in the impugned judgment would show that the High Court conducted a scrutiny of the selections made pursuant to the notifications dated 08.06.2006/20.10.2006 to 7114 posts of Junior Linemen.The said judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch was referred to in the impugned judgment. However, the High Court proceeded to adjudicate the correctness of the selections made pursuant to the notification dated 08.06.2006/20.10.2006. The judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch became final and appointments were made pursuant to the directions issued. The High Court committed a serious error in re-examining the selections to 7114 posts of Junior Linemen and other appointments made beyond the posts that were advertised, made pursuant to the advertisement dated 08.06.2006/20.10.2006. Therefore, the declarations and directions which have a bearing on the selections and appointments that are already made are not sustainable.Keeping in mind that appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P . TRANSCO and the DISCOMS.Needless to say that, any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the
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Workmen of M/s. Indian Turpentine & Rosin Co. Ltd Vs. M/s. Indian Turpentine & Rosin Co. Ltd. Bareilly | for work done whether at the start or in the subsequent stages. Rates of wages would thus include the scales of wages and there is no antithesis between the two expressions, the expression being applicable both to the initial as well as subsequent amounts of wages. It is true that in references made to Industrial Tribunals fixing of scales of pay has been specifically mentioned, e. g., in the industrial dispute between certain banking companies and their workers. But that is not sufficient to exclude the "scales of wages" from being comprised within the larger connotation of the expression "rates of wages" which is capable to including the scales of wages also within its ambit. Even without the specific mention of the scales of wages it would be open to fix the same in an enquiry directed towards the fixation of the rates of wages."5. In view of this authority Mr. Aggarwal, who appeared before us on behalf of the respondent, could not and did not argue that the words "rates of wages" were not wide enough to include time scales of wages. He argued however that though ordinarily fixing "rates of wages" may include the fixing of time scales it will not be proper to read the reference made in the present case as covering a question of time scales of wages. The words which have already been set out are: "Whether the existing rates of basic wages given to unskilled, semi-skilled, skilled and highly skilled workmen employed in the concern need any revision? If so, with what details and from which date ?" Mr. Aggarwal concentrates on the words "existing rates" and argues that in this collocation of words used, the dispute as regards the rates of wages must be held to be limited to the question whether there should be any increase in the present rates or not, for, he points out, the existing rates of wages are not time scale rates. If the existing rates were time scale rates the revision of rates of wages would necessitate the introduction of new time scales. Where, however, as in the present case, the existing rates are not time scales wages, revision means only the increase of these minimum rates which are not on time scale.6. In our opinion, there is no substance in this argument. If the dispute was only on the question whether the present rates should be increased it would not have been necessary to use the word "revision" and it will be more proper to say whether the existing rates need to be raised. There were the existing rates of basic wages. Assuming they were not time scale wages there is no reason to think that the dispute could only be whether these present rates of wages should be raised. The dispute could very well be whether the existing rates should be substituted by time scale rates. The word "revision" used in the reference aptly includes this question. Whether in the peculiar facts and circumstances of the case, a time scale should be introduced or not is for the Tribunal to decide; but there is no warrant for saying that the words used in the reference........."whether the existing rates of basic wages.....need any revision ......." Do not authorise the Tribunal to consider the question at all.7. Besides, it is conceded that under the present system of wages workmen in the same categories drawn different wages and that this disparity is due partly to their respective lengths of service. It is true that the increments in wages due to the length of service is at present at the sweet will and pleasure of the respondent; but even to there is a scale of wages with increments in operation at present. Its revision would mean putting the said wage scale on a rational basis, and that is what the appellants demand. In our opinion, such a demand is clearly included in the terms of reference.8. We have therefore come to the conclusion that the Tribunal has erred in thinking that the reference as made did not authorise it to introduce time scales of wages. It is necessary therefore to remand the matter to the Tribunal below for re-consideration of the question on the basis that it is open to it to fix time scales of wages if it thinks fit and proper.9. In view of this decision on the first contention raised we think it unnecessary and indeed undesirable to consider the other contentions that have been raised before us. In fixing time scales of wages if it so thinks fit the Tribunal will undoubtedly have to fix a minimum as the starting rate for each time scale. The question of this starting rate will have to be considered and decided as part of the bigger question as to hat the time scale should be-the minimum, the maximum, as also the rate of increment. In deciding these questions the Tribunal will undoubtedly take into account all relevant considerations including, inter alia, the financial capacity of the respondent concern, as well as the rates paid by any comparable concerns in the same region. We express no opinion one way or the other on the other contentions raised before us including the contention that the Tribunal erred in thinking that the respondent concern was slightly inferior in financial prosperity than the other two concerns, viz., Wimco and Katha factories with which it thought this concern comparable. All these questions should be considered by the Tribunal afresh.10. Both the parties prayed that they might be allowed to adduce fresh evidence before the Tribunal. We see no objection to this. Both the employer and the workmen should be allowed proper opportunity to adduce evidence and the Tribunal should decide the matter in accordance with law and in the light of our decision that it is open to it to fix time scales of wages, after considering the evidence already on the record as also the evidence that may be adduced hereafter. | 1[ds]6. In our opinion, there is no substance in this argument. If the dispute was only on the question whether the present rates should be increased it would not have been necessary to use the word "revision" and it will be more proper to say whether the existing rates need to be raised. There were the existing rates of basic wages. Assuming they were not time scale wages there is no reason to think that the dispute could only be whether these present rates of wages should be raised. The dispute could very well be whether the existing rates should be substituted by time scale rates. The word "revision" used in the reference aptly includes this question. Whether in the peculiar facts and circumstances of the case, a time scale should be introduced or not is for the Tribunal to decide; but there is no warrant for saying that the words used in the reference........."whether the existing rates of basic wages.....need any revision ......." Do not authorise the Tribunal to consider the question at all.7. Besides, it is conceded that under the present system of wages workmen in the same categories drawn different wages and that this disparity is due partly to their respective lengths of service. It is true that the increments in wages due to the length of service is at present at the sweet will and pleasure of the respondent; but even to there is a scale of wages with increments in operation at present. Its revision would mean putting the said wage scale on a rational basis, and that is what the appellants demand. In our opinion, such a demand is clearly included in the terms of reference.8. We have therefore come to the conclusion that the Tribunal has erred in thinking that the reference as made did not authorise it to introduce time scales of wages. It is necessary therefore to remand the matter to the Tribunal below forof the question on the basis that it is open to it to fix time scales of wages if it thinks fit and proper.9. In view of this decision on the first contention raised we think it unnecessary and indeed undesirable to consider the other contentions that have been raised before us. In fixing time scales of wages if it so thinks fit the Tribunal will undoubtedly have to fix a minimum as the starting rate for each time scale. The question of this starting rate will have to be considered and decided as part of the bigger question as to hat the time scale shouldminimum, the maximum, as also the rate of increment. In deciding these questions the Tribunal will undoubtedly take into account all relevant considerations including, inter alia, the financial capacity of the respondent concern, as well as the rates paid by any comparable concerns in the same region. We express no opinion one way or the other on the other contentions raised before us including the contention that the Tribunal erred in thinking that the respondent concern was slightly inferior in financial prosperity than the other two concerns, viz., Wimco and Katha factories with which it thought this concern comparable. All these questions should be considered by the Tribunal afresh.10. Both the parties prayed that they might be allowed to adduce fresh evidence before the Tribunal. We see no objection to this. Both the employer and the workmen should be allowed proper opportunity to adduce evidence and the Tribunal should decide the matter in accordance with law and in the light of our decision that it is open to it to fix time scales of wages, after considering the evidence already on the record as also the evidence that may be adduced hereafter. | 1 | 1,683 | 672 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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for work done whether at the start or in the subsequent stages. Rates of wages would thus include the scales of wages and there is no antithesis between the two expressions, the expression being applicable both to the initial as well as subsequent amounts of wages. It is true that in references made to Industrial Tribunals fixing of scales of pay has been specifically mentioned, e. g., in the industrial dispute between certain banking companies and their workers. But that is not sufficient to exclude the "scales of wages" from being comprised within the larger connotation of the expression "rates of wages" which is capable to including the scales of wages also within its ambit. Even without the specific mention of the scales of wages it would be open to fix the same in an enquiry directed towards the fixation of the rates of wages."5. In view of this authority Mr. Aggarwal, who appeared before us on behalf of the respondent, could not and did not argue that the words "rates of wages" were not wide enough to include time scales of wages. He argued however that though ordinarily fixing "rates of wages" may include the fixing of time scales it will not be proper to read the reference made in the present case as covering a question of time scales of wages. The words which have already been set out are: "Whether the existing rates of basic wages given to unskilled, semi-skilled, skilled and highly skilled workmen employed in the concern need any revision? If so, with what details and from which date ?" Mr. Aggarwal concentrates on the words "existing rates" and argues that in this collocation of words used, the dispute as regards the rates of wages must be held to be limited to the question whether there should be any increase in the present rates or not, for, he points out, the existing rates of wages are not time scale rates. If the existing rates were time scale rates the revision of rates of wages would necessitate the introduction of new time scales. Where, however, as in the present case, the existing rates are not time scales wages, revision means only the increase of these minimum rates which are not on time scale.6. In our opinion, there is no substance in this argument. If the dispute was only on the question whether the present rates should be increased it would not have been necessary to use the word "revision" and it will be more proper to say whether the existing rates need to be raised. There were the existing rates of basic wages. Assuming they were not time scale wages there is no reason to think that the dispute could only be whether these present rates of wages should be raised. The dispute could very well be whether the existing rates should be substituted by time scale rates. The word "revision" used in the reference aptly includes this question. Whether in the peculiar facts and circumstances of the case, a time scale should be introduced or not is for the Tribunal to decide; but there is no warrant for saying that the words used in the reference........."whether the existing rates of basic wages.....need any revision ......." Do not authorise the Tribunal to consider the question at all.7. Besides, it is conceded that under the present system of wages workmen in the same categories drawn different wages and that this disparity is due partly to their respective lengths of service. It is true that the increments in wages due to the length of service is at present at the sweet will and pleasure of the respondent; but even to there is a scale of wages with increments in operation at present. Its revision would mean putting the said wage scale on a rational basis, and that is what the appellants demand. In our opinion, such a demand is clearly included in the terms of reference.8. We have therefore come to the conclusion that the Tribunal has erred in thinking that the reference as made did not authorise it to introduce time scales of wages. It is necessary therefore to remand the matter to the Tribunal below for re-consideration of the question on the basis that it is open to it to fix time scales of wages if it thinks fit and proper.9. In view of this decision on the first contention raised we think it unnecessary and indeed undesirable to consider the other contentions that have been raised before us. In fixing time scales of wages if it so thinks fit the Tribunal will undoubtedly have to fix a minimum as the starting rate for each time scale. The question of this starting rate will have to be considered and decided as part of the bigger question as to hat the time scale should be-the minimum, the maximum, as also the rate of increment. In deciding these questions the Tribunal will undoubtedly take into account all relevant considerations including, inter alia, the financial capacity of the respondent concern, as well as the rates paid by any comparable concerns in the same region. We express no opinion one way or the other on the other contentions raised before us including the contention that the Tribunal erred in thinking that the respondent concern was slightly inferior in financial prosperity than the other two concerns, viz., Wimco and Katha factories with which it thought this concern comparable. All these questions should be considered by the Tribunal afresh.10. Both the parties prayed that they might be allowed to adduce fresh evidence before the Tribunal. We see no objection to this. Both the employer and the workmen should be allowed proper opportunity to adduce evidence and the Tribunal should decide the matter in accordance with law and in the light of our decision that it is open to it to fix time scales of wages, after considering the evidence already on the record as also the evidence that may be adduced hereafter.
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6. In our opinion, there is no substance in this argument. If the dispute was only on the question whether the present rates should be increased it would not have been necessary to use the word "revision" and it will be more proper to say whether the existing rates need to be raised. There were the existing rates of basic wages. Assuming they were not time scale wages there is no reason to think that the dispute could only be whether these present rates of wages should be raised. The dispute could very well be whether the existing rates should be substituted by time scale rates. The word "revision" used in the reference aptly includes this question. Whether in the peculiar facts and circumstances of the case, a time scale should be introduced or not is for the Tribunal to decide; but there is no warrant for saying that the words used in the reference........."whether the existing rates of basic wages.....need any revision ......." Do not authorise the Tribunal to consider the question at all.7. Besides, it is conceded that under the present system of wages workmen in the same categories drawn different wages and that this disparity is due partly to their respective lengths of service. It is true that the increments in wages due to the length of service is at present at the sweet will and pleasure of the respondent; but even to there is a scale of wages with increments in operation at present. Its revision would mean putting the said wage scale on a rational basis, and that is what the appellants demand. In our opinion, such a demand is clearly included in the terms of reference.8. We have therefore come to the conclusion that the Tribunal has erred in thinking that the reference as made did not authorise it to introduce time scales of wages. It is necessary therefore to remand the matter to the Tribunal below forof the question on the basis that it is open to it to fix time scales of wages if it thinks fit and proper.9. In view of this decision on the first contention raised we think it unnecessary and indeed undesirable to consider the other contentions that have been raised before us. In fixing time scales of wages if it so thinks fit the Tribunal will undoubtedly have to fix a minimum as the starting rate for each time scale. The question of this starting rate will have to be considered and decided as part of the bigger question as to hat the time scale shouldminimum, the maximum, as also the rate of increment. In deciding these questions the Tribunal will undoubtedly take into account all relevant considerations including, inter alia, the financial capacity of the respondent concern, as well as the rates paid by any comparable concerns in the same region. We express no opinion one way or the other on the other contentions raised before us including the contention that the Tribunal erred in thinking that the respondent concern was slightly inferior in financial prosperity than the other two concerns, viz., Wimco and Katha factories with which it thought this concern comparable. All these questions should be considered by the Tribunal afresh.10. Both the parties prayed that they might be allowed to adduce fresh evidence before the Tribunal. We see no objection to this. Both the employer and the workmen should be allowed proper opportunity to adduce evidence and the Tribunal should decide the matter in accordance with law and in the light of our decision that it is open to it to fix time scales of wages, after considering the evidence already on the record as also the evidence that may be adduced hereafter.
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Amar Nath Dogra Vs. Union Of India | are itemised in the paragraphs of the notice which we have set out.If the notice had gone on to state the amount claimed under each of the several heads of items claimed it would have been possible for the government to have considered whether it was worth their while to settle with the plaintiff by agreeing to pay the sum demanded. This they had never an opportunity by reason of the form of the notice, and the manner in which the relief claimed was stated.18. The only item regarding which it could be said that there is a quantification in the notice would be that relating to the claim for the refund of Rs. 21,460/- being the amount of advance deposit made before the licence was granted, but the plaintiffs claim in this regard is barred under the terms of S. 40 of the Punjab Excise Act which runs :"40. When a licence, permit or pass is cancelled or suspended under clause (a), (b), (c), (d) or (e) of section 36 or under section 37, the holder shall not be entitled to any compensation for its cancellation or suspension nor to the refund of any fee paid or deposit made in respect thereof."19. The result therefore would be that the entire claim in the suit must fail by reason of the combined effect of S. 80, Civil Procedure Code and S. 4{) of the Punjab Excise Act.20. With reference to S. 80, Civil Procedure Code there is one further submission of Mr. Sastri to which it is necessary to advert. He urged that whatever other defects there might be in the notice dated September2, 1952, there was a literal compliance with the requirements of S. 80 and that in consequence the Court was bound to treat it as valid. In this connection he pointed out that the only requirements of S. 80 relevant to the present context were that the notice should state the cause of action and the relief which was claimed. His argument was that the contract was single and entire and as the notice had stated that there had been a breach thereof, and had gone on to enumerate the several stipulations which were claimed to have been broken, the requirement that the cause of action should be stated had been complied with. Next was the requirement that the relief claimed should be stated and this also satisfied as the notice claimed damages by way of compensation and had set out the amount so claimed. He pointed out that in regard to the claim for damages the plaint had totalled up the items to reach the figure of Rs. 1,09,653/11/- but had confirmed the claim to Rs. 74,935/8/3 which had been the figure at which damages had been computed in the notice and the argument therefore was that the Court would have jurisdiction to grant the relief at least in respect of those items of the claim which were common to the notice and the plaint. We consider that the validity of the notice now impugned cannot be sustained on the basis suggested. It would be noticed that when the notice dated September 2, 1952 was issued the Collector had not suspended or cancelled the licence and that the claim set out in the notice was on the basis of seeking relief for breaches of stipulations in a subsisting contract. This was made clear by the paragraphs that follow that which we have extracted earlier. These run:"Under the conditions and circumstances disclosed, my client could not be forced to pay in the fees etc. as accrued without first making good to them by you the damages and losses that have resulted hereto before on account of the Government not fulfilling the material conditions, it is therefore requested that no untoward action be proposed by the Government in that behalf, for it would otherwise be unwarranted, illegal and unjustified."The licensee, my client has been and would be willing to carry out his part as relates to the auction conditions if the Government gives immediate redress in the terms abovenoted, and arrange supplies in pilferproof bottles. Otherwise, treating the contract determined he will be forced to take the matter to law courts in which event the Himachal Government will be liable in addition to the damages; to costs and expenses that may accrue for the stated steps."21. When one comes to the plaint however, the entire basis or rather the cause of action is changed. By that date the contract had been terminated, the licence having been suspended and afterwards the Collector had taken over the management of the shops under S. 39 of the Punjab Excise Act. There was, therefore a radical difference between the state of circumstances when the impugned notice was issued and when the plaint was filed which is reflected in the allegations made in the two documents and the reliefs claimed in each. In summary, the notice was based on the breach of stipulations in a contracts which had not been broken and was still subsisting. In that sense, It would be the items claimed in respect of each breach that would constitute a cause of action in the technical sense and it was on their account that the sum of Rs. 74,935/8/3 was claimed as damages. In the plaint, however, the cause of action was different. By that date the allegation was that the contract had been broken by the government repudiating it and taking over the shops after cancelling the licence. The cause of action then was the breach of the entire contract and the items set out in the plaint were the heads of claim under which the damages were computed. In view of these circumstances we have no hesitation in holding that even on a very narrow and strict view of S. 80 there was no compliance with its terms.22. The result therefore is that the entire claim in the suit must fail for the reasons we have indicated earlier. | 0[ds]It would have been noticed that the plaint claim was reduced to Rs. 74,935/8/3 obviously because that was the figure that was claimed in the notice of suit. In the notice however now the total of Rs. 74,935/8/3 was arrived at in what manner the several items claimed were to be related to this figure were not set out. Nor can those details be inferred or gathered from the detailed statements which accompanied the plaint on the basis of which the several items claimed in the plaint were derived. There is one other matter which requires mention in this connection. There were two items of loss claimed in the plaint which had and could have absolutely no place iii the notice because they arose only after the Government suspended the licence and later cancelled it and took over the vend-shops under Governments own management.. These items were: (1) loss on the yearly quota of liquor worked out at Rs. 26,400/-, and (2) the loss of profit for the unworked period. i.e., from July 1, l952 onwards which was worked out to Rs. 45,471/6/- If these two items are deducted from the total Rs. 1,09,653/11/- there would be a balance of only Rs. 37,782/5/-. whereas with reference to the same items of complaint a sum of Rs. 74,935/8/3 was claimed in the notice. Besides, there is one item which figures both in the notice as well as in the plaint regarding which the amount is certain and that is in relation to the claim for the refund of Rs. 21,460/- being the amount of initial deposit of with of the bid amount which had been paid into the Treasury by the appellant in March, 1952. If this were deducted from Rs. 37,782/5/- it would leave a sum of Rs. 16,322/5/- as against Rs. 53,475/8/3 which would be the sum which was the subject of claim by the appellant in his notice in respect of his three items of complaint viz. the failure to supply standard sized bottles, failure to observe the buys-back system and non-supply of liquor in pilfer-proof bottles. It would therefore be apparent from these calculations that there is a complete variance between the claim made in the notice and the claim in the plaint. We desire to mane it clear that what we have here is not a case where a claim for a definite sum in the notice is later reduced in the plaint, but one where there is no possibility of establishing any relationship between the claim made in the suit and that in the notice which precedes it. On the notice she claims under one head, might for all one knows, be for an infinitesimally small sum while the other was exaggerated beyond what is found in the plaint, and hence there is no means of identifying the claim for any particular nun in the plaint with that for which a claim was being made in the notice.There is one other aspect from which the same matter could be viewed. In the notice served by the appellant there were several heads of claim, though they all arose out of a single contract and we consider that on a reasonable and proper construction of S. 80, Civil Procedure Code the authority on whom the notice is served has a right to be informed what the claim of the party is in respect of each of the several heads. It is, no doubt, true that a notice under S. 80 is not a pleading and need not be a copy of the plaint and that no particular or technical form is prescribed for such a notice, still having regard to the object for which S. 80 has been enacted we consider that the details which it contains should be sufficient to inform the party on whom it is served of the nature and basis of the claim and the relief sought, and in so stating the position we are merely reproducing the terms of the section. No doubt a notice has to be interpreted not pedantically but in the light of common sense without one being hypercritical about the language but the question iswhether in the notice before us there is substantial information conveyed on the basis of which the recipient of the notice could consider the claim of the would-be plaintiff and avert the suit.For the reasons already stated this question can only be answered in theone comes to the plaint however, the entire basis or rather the cause of action is changed. By that date the contract had been terminated, the licence having been suspended and afterwards the Collector had taken over the management of the shops under S. 39 of the Punjab Excise Act. There was, therefore a radical difference between the state of circumstances when the impugned notice was issued and when the plaint was filed which is reflected in the allegations made in the two documents and the reliefs claimed in each. In summary, the notice was based on the breach of stipulations in a contracts which had not been broken and was still subsisting. In that sense, It would be the items claimed in respect of each breach that would constitute a cause of action in the technical sense and it was on their account that the sum of Rs. 74,935/8/3 was claimed as damages. In the plaint, however, the cause of action was different. By that date the allegation was that the contract had been broken by the government repudiating it and taking over the shops after cancelling the licence. The cause of action then was the breach of the entire contract and the items set out in the plaint were the heads of claim under which the damages were computed. In view of these circumstances we have no hesitation in holding that even on a very narrow and strict view of S. 80 there was no compliance with its terms.The result therefore is that the entire claim in the suit must fail for the reasons we have indicated earlier. | 0 | 5,288 | 1,079 | ### Instruction:
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are itemised in the paragraphs of the notice which we have set out.If the notice had gone on to state the amount claimed under each of the several heads of items claimed it would have been possible for the government to have considered whether it was worth their while to settle with the plaintiff by agreeing to pay the sum demanded. This they had never an opportunity by reason of the form of the notice, and the manner in which the relief claimed was stated.18. The only item regarding which it could be said that there is a quantification in the notice would be that relating to the claim for the refund of Rs. 21,460/- being the amount of advance deposit made before the licence was granted, but the plaintiffs claim in this regard is barred under the terms of S. 40 of the Punjab Excise Act which runs :"40. When a licence, permit or pass is cancelled or suspended under clause (a), (b), (c), (d) or (e) of section 36 or under section 37, the holder shall not be entitled to any compensation for its cancellation or suspension nor to the refund of any fee paid or deposit made in respect thereof."19. The result therefore would be that the entire claim in the suit must fail by reason of the combined effect of S. 80, Civil Procedure Code and S. 4{) of the Punjab Excise Act.20. With reference to S. 80, Civil Procedure Code there is one further submission of Mr. Sastri to which it is necessary to advert. He urged that whatever other defects there might be in the notice dated September2, 1952, there was a literal compliance with the requirements of S. 80 and that in consequence the Court was bound to treat it as valid. In this connection he pointed out that the only requirements of S. 80 relevant to the present context were that the notice should state the cause of action and the relief which was claimed. His argument was that the contract was single and entire and as the notice had stated that there had been a breach thereof, and had gone on to enumerate the several stipulations which were claimed to have been broken, the requirement that the cause of action should be stated had been complied with. Next was the requirement that the relief claimed should be stated and this also satisfied as the notice claimed damages by way of compensation and had set out the amount so claimed. He pointed out that in regard to the claim for damages the plaint had totalled up the items to reach the figure of Rs. 1,09,653/11/- but had confirmed the claim to Rs. 74,935/8/3 which had been the figure at which damages had been computed in the notice and the argument therefore was that the Court would have jurisdiction to grant the relief at least in respect of those items of the claim which were common to the notice and the plaint. We consider that the validity of the notice now impugned cannot be sustained on the basis suggested. It would be noticed that when the notice dated September 2, 1952 was issued the Collector had not suspended or cancelled the licence and that the claim set out in the notice was on the basis of seeking relief for breaches of stipulations in a subsisting contract. This was made clear by the paragraphs that follow that which we have extracted earlier. These run:"Under the conditions and circumstances disclosed, my client could not be forced to pay in the fees etc. as accrued without first making good to them by you the damages and losses that have resulted hereto before on account of the Government not fulfilling the material conditions, it is therefore requested that no untoward action be proposed by the Government in that behalf, for it would otherwise be unwarranted, illegal and unjustified."The licensee, my client has been and would be willing to carry out his part as relates to the auction conditions if the Government gives immediate redress in the terms abovenoted, and arrange supplies in pilferproof bottles. Otherwise, treating the contract determined he will be forced to take the matter to law courts in which event the Himachal Government will be liable in addition to the damages; to costs and expenses that may accrue for the stated steps."21. When one comes to the plaint however, the entire basis or rather the cause of action is changed. By that date the contract had been terminated, the licence having been suspended and afterwards the Collector had taken over the management of the shops under S. 39 of the Punjab Excise Act. There was, therefore a radical difference between the state of circumstances when the impugned notice was issued and when the plaint was filed which is reflected in the allegations made in the two documents and the reliefs claimed in each. In summary, the notice was based on the breach of stipulations in a contracts which had not been broken and was still subsisting. In that sense, It would be the items claimed in respect of each breach that would constitute a cause of action in the technical sense and it was on their account that the sum of Rs. 74,935/8/3 was claimed as damages. In the plaint, however, the cause of action was different. By that date the allegation was that the contract had been broken by the government repudiating it and taking over the shops after cancelling the licence. The cause of action then was the breach of the entire contract and the items set out in the plaint were the heads of claim under which the damages were computed. In view of these circumstances we have no hesitation in holding that even on a very narrow and strict view of S. 80 there was no compliance with its terms.22. The result therefore is that the entire claim in the suit must fail for the reasons we have indicated earlier.
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reduced to Rs. 74,935/8/3 obviously because that was the figure that was claimed in the notice of suit. In the notice however now the total of Rs. 74,935/8/3 was arrived at in what manner the several items claimed were to be related to this figure were not set out. Nor can those details be inferred or gathered from the detailed statements which accompanied the plaint on the basis of which the several items claimed in the plaint were derived. There is one other matter which requires mention in this connection. There were two items of loss claimed in the plaint which had and could have absolutely no place iii the notice because they arose only after the Government suspended the licence and later cancelled it and took over the vend-shops under Governments own management.. These items were: (1) loss on the yearly quota of liquor worked out at Rs. 26,400/-, and (2) the loss of profit for the unworked period. i.e., from July 1, l952 onwards which was worked out to Rs. 45,471/6/- If these two items are deducted from the total Rs. 1,09,653/11/- there would be a balance of only Rs. 37,782/5/-. whereas with reference to the same items of complaint a sum of Rs. 74,935/8/3 was claimed in the notice. Besides, there is one item which figures both in the notice as well as in the plaint regarding which the amount is certain and that is in relation to the claim for the refund of Rs. 21,460/- being the amount of initial deposit of with of the bid amount which had been paid into the Treasury by the appellant in March, 1952. If this were deducted from Rs. 37,782/5/- it would leave a sum of Rs. 16,322/5/- as against Rs. 53,475/8/3 which would be the sum which was the subject of claim by the appellant in his notice in respect of his three items of complaint viz. the failure to supply standard sized bottles, failure to observe the buys-back system and non-supply of liquor in pilfer-proof bottles. It would therefore be apparent from these calculations that there is a complete variance between the claim made in the notice and the claim in the plaint. We desire to mane it clear that what we have here is not a case where a claim for a definite sum in the notice is later reduced in the plaint, but one where there is no possibility of establishing any relationship between the claim made in the suit and that in the notice which precedes it. On the notice she claims under one head, might for all one knows, be for an infinitesimally small sum while the other was exaggerated beyond what is found in the plaint, and hence there is no means of identifying the claim for any particular nun in the plaint with that for which a claim was being made in the notice.There is one other aspect from which the same matter could be viewed. In the notice served by the appellant there were several heads of claim, though they all arose out of a single contract and we consider that on a reasonable and proper construction of S. 80, Civil Procedure Code the authority on whom the notice is served has a right to be informed what the claim of the party is in respect of each of the several heads. It is, no doubt, true that a notice under S. 80 is not a pleading and need not be a copy of the plaint and that no particular or technical form is prescribed for such a notice, still having regard to the object for which S. 80 has been enacted we consider that the details which it contains should be sufficient to inform the party on whom it is served of the nature and basis of the claim and the relief sought, and in so stating the position we are merely reproducing the terms of the section. No doubt a notice has to be interpreted not pedantically but in the light of common sense without one being hypercritical about the language but the question iswhether in the notice before us there is substantial information conveyed on the basis of which the recipient of the notice could consider the claim of the would-be plaintiff and avert the suit.For the reasons already stated this question can only be answered in theone comes to the plaint however, the entire basis or rather the cause of action is changed. By that date the contract had been terminated, the licence having been suspended and afterwards the Collector had taken over the management of the shops under S. 39 of the Punjab Excise Act. There was, therefore a radical difference between the state of circumstances when the impugned notice was issued and when the plaint was filed which is reflected in the allegations made in the two documents and the reliefs claimed in each. In summary, the notice was based on the breach of stipulations in a contracts which had not been broken and was still subsisting. In that sense, It would be the items claimed in respect of each breach that would constitute a cause of action in the technical sense and it was on their account that the sum of Rs. 74,935/8/3 was claimed as damages. In the plaint, however, the cause of action was different. By that date the allegation was that the contract had been broken by the government repudiating it and taking over the shops after cancelling the licence. The cause of action then was the breach of the entire contract and the items set out in the plaint were the heads of claim under which the damages were computed. In view of these circumstances we have no hesitation in holding that even on a very narrow and strict view of S. 80 there was no compliance with its terms.The result therefore is that the entire claim in the suit must fail for the reasons we have indicated earlier.
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Kailash Rai Vs. Jai Jai Ram & Others | cannot ignore the decree that has been obtained by him in suit No. 918 of 1945 and the further fact that he is working out the said decree by asking for partition in the present proceedings. According to the High Court, as possession is with the defendants, the plaintiff-appellant cannot get any relief.9. It should be remembered that the District Court has recorded a definite finding that the defendants have not set up any plea of ouster.This finding, so far as we could see has not been disturbed by the High Court. The decree in suit No. 918 of 1945 clearly recognises the right of the appellant as a co-sharer along with the defendants. In law the possession of one co-sharer is possession both on his behalf as well as on behalf of all the other co-sharers unless ouster is pleaded and established In this case, as pointed out by us earlier, the finding is that the defendants have not raised the plea of ouster.There is no indication in the Abolition Act or the Tenancy Act that bhumidhari rights are not intended to be conferred on all the co-sharers or co-proprietors, who are entitled to the properties, though only some of them may be in actual cultivation. One can very well visualise a family consisting of father and two sons, both of whom are minors. Normally, the cultivation will be done only by the father. Does it mean that when the father is found to be cultivating the land on 30-6-1952, he alone is entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights? In our opinion, the normal principle that possession by one co-sharer is possession for all has to be applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression possession in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. Under such circumstances, the lands can be considered to be in the possession of the appellant or, at any rate, in his constructive possession.10.Clause (a), as we have pointed out takes in two other contingencies also namely, lands held as khudkasht or lands deemed to be held as khudkasht. Even assuming that, in view of the finding of the District Court, the defendants are in possession and on that basis the plaintiff cannot be considered to be also in possession, nevertheless, the lands in question can be considered to be held or deemed to be held by the appellant also. The expression held occurs in S. 9 of the Abolition Act. In interpreting the said expression, this Court in Budhan Singh v. Nabi Bux, (1970) 2 SCR 10 = (AIR 1970 SC 1880 ) has held that it means lawfully held. This Court has further observed that -"According to Websters New Twentieth Century Dictionary the word hold is technically understood to mean to possess by legal title. Therefore by interpreting the word held as lawfully held there was no addition of any word to the section. According to the words of S. 9 and in the context of the scheme of the Act it is proper to construe the word held in the section as lawfully held."11. Mr. Bagga, however, contended that the expression held in clause (a) denotes actual possession. As the finding on that point is against the appellant, the lands cannot be considered to be held by him. We are not inclined to accept this contention. In clause (b) occurs the words held as a grove by. If the expression held occurring in clause (a) means actual possession, then the same meaning must be given to the same word occurring in clause (b) also. But it will be seen that in the latter part of cl. (b), the legislature has used the expression personal cultivation with reference to Avadh, whereas it has not used any such expression in the first part of clause (b). Therefore, the expression held must have a meaning different from personal cultiviation. In our opinion the expression held can only be taken to connote the existence of a right or title in a person. The appellants right and title as holder of the lands has been declared and settled in suit No. 918 of 1945. It can also be held that the lands can be considered to be deemed to be held by the appellant. The expression deemed to be held has been used by the legislature to treat persons like the appellant bhumidhars by creating a fiction.12. We cannot accept the contention of Mr. Bagga that the appellant should have challenged the order of the High Court dated July 27, 1965, calling for a finding from the first appellate Court. That other was passed at an intermediary stage and the appellant was justified in waiting for the final decision of the High Court to be given.13. It is now necessary to consider the decision of the Allahabad High Court in AIR 1966 All 173 following which the present decision under appeal has been rendered. It is no doubt true that the said decision does support the respondents in the sense that it holds that only that Co-proprietor who is in cultivatory possession, becomes khudkasht holder and that possession over proprietary rights by itself does not confer khudkasht holders rights. The said decision, we find, has laid undue emphasis on cultivatory possession, which alone will attract clause (a) of S. 18 (1). There is no consideration in the said decision of the various aspects referred to by us and we are not inclined to agree with the view taken by the High Court in the said decision. | 1[ds]In our opinion, the normal principle that possession by one co-sharer is possession for all has to be applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression possession in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. Under such circumstances, the lands can be considered to be in the possession of the appellant or, at any rate, in his constructive possession.10.Clause (a), as we have pointed out takes in two other contingencies also namely, lands held as khudkasht or lands deemed to be held as khudkasht. Even assuming that, in view of the finding of the District Court, the defendants are in possession and on that basis the plaintiff cannot be considered to be also in possession, nevertheless, the lands in question can be considered to be held or deemed to be held by the appellantare not inclined to accept this contention. In clause (b) occurs the words held as a grove by. If the expression held occurring in clause (a) means actual possession, then the same meaning must be given to the same word occurring in clause (b) also. But it will be seen that in the latter part of cl. (b), the legislature has used the expression personal cultivation with reference to Avadh, whereas it has not used any such expression in the first part of clause (b). Therefore, the expression held must have a meaning different from personal cultiviation. In our opinion the expression held can only be taken to connote the existence of a right or title in a person. The appellants right and title as holder of the lands has been declared and settled in suit No. 918 of 1945. It can also be held that the lands can be considered to be deemed to be held by the appellant. The expression deemed to be held has been used by the legislature to treat persons like the appellant bhumidhars by creating a fiction.12. We cannot accept the contention of Mr. Bagga that the appellant should have challenged the order of the High Court dated July 27, 1965, calling for a finding from the first appellate Court. That other was passed at an intermediary stage and the appellant was justified in waiting for the final decision of the High Court to be given.13. It is now necessary to consider the decision of the Allahabad High Court in AIR 1966 All 173 following which the present decision under appeal has been rendered. It is no doubt true that the said decision does support the respondents in the sense that it holds that only that Co-proprietor who is in cultivatory possession, becomes khudkasht holder and that possession over proprietary rights by itself does not confer khudkasht holders rights. The said decision, we find, has laid undue emphasis on cultivatory possession, which alone will attract clause (a) of S. 18 (1). There is no consideration in the said decision of the various aspects referred to by us and we are not inclined to agree with the view taken by the High Court in the saidfinding sent by the District Court is no doubt prima facie against the appellant. But we cannot ignore the decree that has been obtained by him in suit No. 918 of 1945 and the further fact that he is working out the said decree by asking for partition in the present proceedings. According to the High Court, as possession is with the defendants, thecannot get any relief. | 1 | 2,678 | 715 | ### Instruction:
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cannot ignore the decree that has been obtained by him in suit No. 918 of 1945 and the further fact that he is working out the said decree by asking for partition in the present proceedings. According to the High Court, as possession is with the defendants, the plaintiff-appellant cannot get any relief.9. It should be remembered that the District Court has recorded a definite finding that the defendants have not set up any plea of ouster.This finding, so far as we could see has not been disturbed by the High Court. The decree in suit No. 918 of 1945 clearly recognises the right of the appellant as a co-sharer along with the defendants. In law the possession of one co-sharer is possession both on his behalf as well as on behalf of all the other co-sharers unless ouster is pleaded and established In this case, as pointed out by us earlier, the finding is that the defendants have not raised the plea of ouster.There is no indication in the Abolition Act or the Tenancy Act that bhumidhari rights are not intended to be conferred on all the co-sharers or co-proprietors, who are entitled to the properties, though only some of them may be in actual cultivation. One can very well visualise a family consisting of father and two sons, both of whom are minors. Normally, the cultivation will be done only by the father. Does it mean that when the father is found to be cultivating the land on 30-6-1952, he alone is entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights? In our opinion, the normal principle that possession by one co-sharer is possession for all has to be applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression possession in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. Under such circumstances, the lands can be considered to be in the possession of the appellant or, at any rate, in his constructive possession.10.Clause (a), as we have pointed out takes in two other contingencies also namely, lands held as khudkasht or lands deemed to be held as khudkasht. Even assuming that, in view of the finding of the District Court, the defendants are in possession and on that basis the plaintiff cannot be considered to be also in possession, nevertheless, the lands in question can be considered to be held or deemed to be held by the appellant also. The expression held occurs in S. 9 of the Abolition Act. In interpreting the said expression, this Court in Budhan Singh v. Nabi Bux, (1970) 2 SCR 10 = (AIR 1970 SC 1880 ) has held that it means lawfully held. This Court has further observed that -"According to Websters New Twentieth Century Dictionary the word hold is technically understood to mean to possess by legal title. Therefore by interpreting the word held as lawfully held there was no addition of any word to the section. According to the words of S. 9 and in the context of the scheme of the Act it is proper to construe the word held in the section as lawfully held."11. Mr. Bagga, however, contended that the expression held in clause (a) denotes actual possession. As the finding on that point is against the appellant, the lands cannot be considered to be held by him. We are not inclined to accept this contention. In clause (b) occurs the words held as a grove by. If the expression held occurring in clause (a) means actual possession, then the same meaning must be given to the same word occurring in clause (b) also. But it will be seen that in the latter part of cl. (b), the legislature has used the expression personal cultivation with reference to Avadh, whereas it has not used any such expression in the first part of clause (b). Therefore, the expression held must have a meaning different from personal cultiviation. In our opinion the expression held can only be taken to connote the existence of a right or title in a person. The appellants right and title as holder of the lands has been declared and settled in suit No. 918 of 1945. It can also be held that the lands can be considered to be deemed to be held by the appellant. The expression deemed to be held has been used by the legislature to treat persons like the appellant bhumidhars by creating a fiction.12. We cannot accept the contention of Mr. Bagga that the appellant should have challenged the order of the High Court dated July 27, 1965, calling for a finding from the first appellate Court. That other was passed at an intermediary stage and the appellant was justified in waiting for the final decision of the High Court to be given.13. It is now necessary to consider the decision of the Allahabad High Court in AIR 1966 All 173 following which the present decision under appeal has been rendered. It is no doubt true that the said decision does support the respondents in the sense that it holds that only that Co-proprietor who is in cultivatory possession, becomes khudkasht holder and that possession over proprietary rights by itself does not confer khudkasht holders rights. The said decision, we find, has laid undue emphasis on cultivatory possession, which alone will attract clause (a) of S. 18 (1). There is no consideration in the said decision of the various aspects referred to by us and we are not inclined to agree with the view taken by the High Court in the said decision.
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In our opinion, the normal principle that possession by one co-sharer is possession for all has to be applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression possession in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. Under such circumstances, the lands can be considered to be in the possession of the appellant or, at any rate, in his constructive possession.10.Clause (a), as we have pointed out takes in two other contingencies also namely, lands held as khudkasht or lands deemed to be held as khudkasht. Even assuming that, in view of the finding of the District Court, the defendants are in possession and on that basis the plaintiff cannot be considered to be also in possession, nevertheless, the lands in question can be considered to be held or deemed to be held by the appellantare not inclined to accept this contention. In clause (b) occurs the words held as a grove by. If the expression held occurring in clause (a) means actual possession, then the same meaning must be given to the same word occurring in clause (b) also. But it will be seen that in the latter part of cl. (b), the legislature has used the expression personal cultivation with reference to Avadh, whereas it has not used any such expression in the first part of clause (b). Therefore, the expression held must have a meaning different from personal cultiviation. In our opinion the expression held can only be taken to connote the existence of a right or title in a person. The appellants right and title as holder of the lands has been declared and settled in suit No. 918 of 1945. It can also be held that the lands can be considered to be deemed to be held by the appellant. The expression deemed to be held has been used by the legislature to treat persons like the appellant bhumidhars by creating a fiction.12. We cannot accept the contention of Mr. Bagga that the appellant should have challenged the order of the High Court dated July 27, 1965, calling for a finding from the first appellate Court. That other was passed at an intermediary stage and the appellant was justified in waiting for the final decision of the High Court to be given.13. It is now necessary to consider the decision of the Allahabad High Court in AIR 1966 All 173 following which the present decision under appeal has been rendered. It is no doubt true that the said decision does support the respondents in the sense that it holds that only that Co-proprietor who is in cultivatory possession, becomes khudkasht holder and that possession over proprietary rights by itself does not confer khudkasht holders rights. The said decision, we find, has laid undue emphasis on cultivatory possession, which alone will attract clause (a) of S. 18 (1). There is no consideration in the said decision of the various aspects referred to by us and we are not inclined to agree with the view taken by the High Court in the saidfinding sent by the District Court is no doubt prima facie against the appellant. But we cannot ignore the decree that has been obtained by him in suit No. 918 of 1945 and the further fact that he is working out the said decree by asking for partition in the present proceedings. According to the High Court, as possession is with the defendants, thecannot get any relief.
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Chief Commissioner, Ajmer Vs. Radhey Shyam Dani | and objections to such enrolments. The amendment did not obviate the necessity of taking these further steps in spite of the electoral roll for the Parliamentary Constituency being treated as the electoral roll of the Municipality. By thus treating the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality, the trouble and expenses involved in the preparation of the electoral roll for the Municipality were saved but the Municipality was not absolved from the obligation of providing for the revision of such electoral roll as well as the adjudication of claims to be enrolled therein and objections to such enrolment.11. When the Ajmer State Municipalities Election Rules, 1955 came to be framed in exercise of the power conferred by S. 43 of the Regulation, the Chief Commissioner framed R. 7 which provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality. He dispensed with the independent preparation by the Municipality of the electoral roll but did nothing further. Rule 9 provided that no person shall be deemed to be an elector for the purpose of the rules unless his name appeared in the electoral rolls mentioned above. That had reference obviously to the second condition prescribed in S.30, sub-s.(2) of the Regulation but did not go far enough. It did not say that a person whose name appeared in the electoral roll for the Parliamentary Constituency was to be deemed to be an elector for the purposes of the Rules so as to obviate the necessity of fulfilling the first condition therein prescribed and rightly so, because, if it did say so, it would be in conflict with S.30, sub-s. (2) of the Regulation. These rules did not eliminate the scrutiny which could be made at the instance of the parties concerned as to whether a person whose name was registered in the electoral roll for the Parliamentary Constituency wag in fact entitled under the Representation of the People Act, 1950 (XLIII of 1950 ) to be so registered and whether he possessed the qualifications prescribed in that Act in this behalf nor did they eliminate the further scrutiny for, the purpose of the revision of such electoral roll or the adjudication of claims to be enrolled therein and objections to such enrolment.12. It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective.13. It was urged that the expression "the final printed roll for the Parliamentary Constituency" predicated that the electoral roll for the Parliamentary Constituency had been finalised after going through the whole procedure in accordance with the provisions of the Representation of the People Act, 1950 (XLIII of 1950) and. therefore, there was no necessity for making any further provision of that nature in the matter of the electoral roll of the Municipality. This contention is unsound for the simple reason that by using this phraseology the whole of the procedure laid down in the Representation of the People Act, 1950 (XLIII of 1950) is not bodily incorporated in the Ajmer-Merwara Municipalities Regulation, 1925 (VI of 1925).14. Neither the Regulation nor the rules which have been framed by the Chief Commissioner in exercise of the powers conferred under S. 43 of the Regulation make any mention of any such incorporation nor is it possible to urge that, merely because the electoral roll for the Parliamentary Constituency was treated as the basis for the electoral roll of the Municipality, these provisions were bodily incorporated in the Rules. If Rr. 7 and 9 above referred to were intended to form a complete code for the finalisation of the electoral roll of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of S. 30, sub-s. (2) of the Regulation or were defective in so far as they failed to provide the proper procedure for taking of the steps hereinabove indicated for finalising the electoral roll of the Municipality. If that was the true position the electoral roll of the Municipality which had been authenticated and published by the Chief Commissioner on August 8, 1955, was certainly not an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at any time thereafter.15. In the view which we hold, it is not necessary to consider whether, in the event of an inconsistency between S. 30, sub-s. (2) of the Regulation and the Rules framed by the Chief Commissioner in exercise of the power conferred under S.43 of the Regulation, the section would prevail or the Rules.Suffice it to say that the electoral roll of the Ajmer Municipality which was authenticated and published by the Chief Commissioner on August 8, 1955 was not in conformity with the provisions of S. 3 sub-s. (2) and the relevant provisions of the regulation and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee.16. | 0[ds]12. It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective.This contention is unsound for the simple reason that by using this phraseology the whole of the procedure laid down in the Representation of the People Act, 1950 (XLIII of 1950) is not bodily incorporated in the Ajmer-Merwara Municipalities Regulation, 1925 (VI of 1925).Neither the Regulation nor the rules which have been framed by the Chief Commissioner in exercise of the powers conferred under S. 43 of the Regulation make any mention of any such incorporation nor is it possible to urge that, merely because the electoral roll for the Parliamentary Constituency was treated as the basis for the electoral roll of the Municipality, these provisions were bodily incorporated in the Rules. If Rr. 7 and 9 above referred to were intended to form a complete code for the finalisation of the electoral roll of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of S. 30, sub-s. (2) of the Regulation or were defective in so far as they failed to provide the proper procedure for taking of the steps hereinabove indicated for finalising the electoral roll of the Municipality. If that was the true position the electoral roll of the Municipality which had been authenticated and published by the Chief Commissioner on August 8, 1955, was certainly not an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at any time thereafter.In the view which we hold, it is not necessary to consider whether, in the event of an inconsistency between S. 30, sub-s. (2) of the Regulation and the Rules framed by the Chief Commissioner in exercise of the power conferred under S.43 of the Regulation, the section would prevail or the Rules.Suffice it to say that the electoral roll of the Ajmer Municipality which was authenticated and published by the Chief Commissioner on August 8, 1955 was not in conformity with the provisions of S. 3 sub-s. (2) and the relevant provisions of the regulation and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee. | 0 | 3,186 | 567 | ### Instruction:
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and objections to such enrolments. The amendment did not obviate the necessity of taking these further steps in spite of the electoral roll for the Parliamentary Constituency being treated as the electoral roll of the Municipality. By thus treating the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality, the trouble and expenses involved in the preparation of the electoral roll for the Municipality were saved but the Municipality was not absolved from the obligation of providing for the revision of such electoral roll as well as the adjudication of claims to be enrolled therein and objections to such enrolment.11. When the Ajmer State Municipalities Election Rules, 1955 came to be framed in exercise of the power conferred by S. 43 of the Regulation, the Chief Commissioner framed R. 7 which provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality. He dispensed with the independent preparation by the Municipality of the electoral roll but did nothing further. Rule 9 provided that no person shall be deemed to be an elector for the purpose of the rules unless his name appeared in the electoral rolls mentioned above. That had reference obviously to the second condition prescribed in S.30, sub-s.(2) of the Regulation but did not go far enough. It did not say that a person whose name appeared in the electoral roll for the Parliamentary Constituency was to be deemed to be an elector for the purposes of the Rules so as to obviate the necessity of fulfilling the first condition therein prescribed and rightly so, because, if it did say so, it would be in conflict with S.30, sub-s. (2) of the Regulation. These rules did not eliminate the scrutiny which could be made at the instance of the parties concerned as to whether a person whose name was registered in the electoral roll for the Parliamentary Constituency wag in fact entitled under the Representation of the People Act, 1950 (XLIII of 1950 ) to be so registered and whether he possessed the qualifications prescribed in that Act in this behalf nor did they eliminate the further scrutiny for, the purpose of the revision of such electoral roll or the adjudication of claims to be enrolled therein and objections to such enrolment.12. It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective.13. It was urged that the expression "the final printed roll for the Parliamentary Constituency" predicated that the electoral roll for the Parliamentary Constituency had been finalised after going through the whole procedure in accordance with the provisions of the Representation of the People Act, 1950 (XLIII of 1950) and. therefore, there was no necessity for making any further provision of that nature in the matter of the electoral roll of the Municipality. This contention is unsound for the simple reason that by using this phraseology the whole of the procedure laid down in the Representation of the People Act, 1950 (XLIII of 1950) is not bodily incorporated in the Ajmer-Merwara Municipalities Regulation, 1925 (VI of 1925).14. Neither the Regulation nor the rules which have been framed by the Chief Commissioner in exercise of the powers conferred under S. 43 of the Regulation make any mention of any such incorporation nor is it possible to urge that, merely because the electoral roll for the Parliamentary Constituency was treated as the basis for the electoral roll of the Municipality, these provisions were bodily incorporated in the Rules. If Rr. 7 and 9 above referred to were intended to form a complete code for the finalisation of the electoral roll of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of S. 30, sub-s. (2) of the Regulation or were defective in so far as they failed to provide the proper procedure for taking of the steps hereinabove indicated for finalising the electoral roll of the Municipality. If that was the true position the electoral roll of the Municipality which had been authenticated and published by the Chief Commissioner on August 8, 1955, was certainly not an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at any time thereafter.15. In the view which we hold, it is not necessary to consider whether, in the event of an inconsistency between S. 30, sub-s. (2) of the Regulation and the Rules framed by the Chief Commissioner in exercise of the power conferred under S.43 of the Regulation, the section would prevail or the Rules.Suffice it to say that the electoral roll of the Ajmer Municipality which was authenticated and published by the Chief Commissioner on August 8, 1955 was not in conformity with the provisions of S. 3 sub-s. (2) and the relevant provisions of the regulation and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee.16.
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### Explanation:
12. It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective.This contention is unsound for the simple reason that by using this phraseology the whole of the procedure laid down in the Representation of the People Act, 1950 (XLIII of 1950) is not bodily incorporated in the Ajmer-Merwara Municipalities Regulation, 1925 (VI of 1925).Neither the Regulation nor the rules which have been framed by the Chief Commissioner in exercise of the powers conferred under S. 43 of the Regulation make any mention of any such incorporation nor is it possible to urge that, merely because the electoral roll for the Parliamentary Constituency was treated as the basis for the electoral roll of the Municipality, these provisions were bodily incorporated in the Rules. If Rr. 7 and 9 above referred to were intended to form a complete code for the finalisation of the electoral roll of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of S. 30, sub-s. (2) of the Regulation or were defective in so far as they failed to provide the proper procedure for taking of the steps hereinabove indicated for finalising the electoral roll of the Municipality. If that was the true position the electoral roll of the Municipality which had been authenticated and published by the Chief Commissioner on August 8, 1955, was certainly not an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at any time thereafter.In the view which we hold, it is not necessary to consider whether, in the event of an inconsistency between S. 30, sub-s. (2) of the Regulation and the Rules framed by the Chief Commissioner in exercise of the power conferred under S.43 of the Regulation, the section would prevail or the Rules.Suffice it to say that the electoral roll of the Ajmer Municipality which was authenticated and published by the Chief Commissioner on August 8, 1955 was not in conformity with the provisions of S. 3 sub-s. (2) and the relevant provisions of the regulation and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee.
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Patna Electric Supply Co., Ltd., Patna Vs. Bali Rai & Another | of the Industrial Disputes (Appellate Tribunal) Act, 1950, the respondents had a right of appeal to the Labour Appellate Tribunal. 7. It is necessary, therefore, to appreciate what was sought to be done by the appellant when it made the application before the Industrial Tribunal on 6-12-1952. This application has been described by the Labour Appellate Tribunal as an application for amendment of the original application which had been filed by the appellant on 21-12-1952, for permission to dismiss the respondents from its employ as per Cl. 17 (b) (viii) of the Standing Orders. It must be noted, however, that what the appellant purported to do by its application of 6-12-1952, was, in effect, to substitute another application asking for permission to discharge the respondents from its employ under Cl. 14 (a) of the Standing Orders, thus abandoning the relief which it had prayed for in the original application. The application dated 6-12-1952, was thus, in substance, a new application made by the appellant to the Industrial Tribunal, no doubt relying upon the facts and circumstances which were set out in the original application but asking for the permission of the Industrial Tribunal to discharge the respondents from its employ under Cl. 14 (a) of the Standing Orders instead of dismissing them from its employ under Cl. 17 (b) (viii) thereof. We do not see how it was not competent to the Industrial Tribunal to allow the appellant to do so. If the appellant had been actuated by any oblique motives and wanted to evade the consequences of its not having held a proper enquiry after submitting a charge-sheet to the respondents one could have understood the criticism made by the Labour Appellate Tribunal in regard to the same. The Industrial Tribunal, however, expressly recorded the finding that the application for leave to discharge the respondents from its employ was bona fide and what the appellant did by making the application dated 6-12-1952, was actuated by an honest motive of exercising its right to discharge the respondents under Cl. 14 (a) of the Standing Orders instead of visiting upon the respondents the penalty of dismissing them from its employ under clause 17 (b) (viii), thereof.The discharge of the respondents was a discharge simpliciter in exercise of the rights of the employer under Cl. 14 (a) of the Standing Orders and was not a punitive discharge under Cl. 17 (b) (viii) thereof and if it was merely a discharge simpliciter, then, no objection could be taken to the same and the appellant would be well within its rights to do so, provided, however, that it was not arbitrary or capricious but was bona fide. 8. The only question relevant to be considered by the Industrial Tribunal would be that in taking the step which it did the appellant was not guilty of any unfair labour practice or victimization. If the Industrial Tribunal did not come to a conclusion adverse to the appellant on these counts, it would have no jurisdiction to refuse the permission asked for by the appellant. Once the Industrial Tribunal was of opinion that the application dated 6-12-1952, and the discharge of the respondents for which the permission of the Industrial Tribunal was sought were in the honest exercise of the appellants rights, no question of law, much less a substantial question of law, could arise in the appeal filed by the respondents against the decision of the Industrial Tribunal and the Labour Appellate Tribunal was clearly in error when it entertained the appeal. 9. In view of the above finding, we do not propose to deal with the contention that the order passed by the Industrial Tribunal u/s. 33 of the Act is not a "decision" within the meaning of that term in S. 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950. 10. The argument that the discharge of the respondents though patently it was a discharge simpliciter was, in substance, retrenchment within the meaning of the definition contained in S. 2 (oo) of the Act is equally untenable, for the simple reason that the term "retrenchment" was for the first time defined in the manner in which it has been done by an Ordinance promulgated in October 1953 which was followed by Act 43 of 1953 which was published in the Gazette of India on 23-12-1953. The Industrial Tribunal made its order granting the permission under S. 33 of the Act on 14-5-1953, so that, this definition of the term "retrenchment" could not apply to the facts of the present case. If, therefore, at the relevant period the discharge simpliciter could not be deemed to be retrenchment of the respondents by the appellant, the decision of the Industrial Tribunal could not be said to be one in respect of any of the matters specified in sub-s. (1) (b) of S. 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950. In that view also no appeal could lie from the decision of the Industrial Tribunal to the Labour Appellate Tribunal. 11. It must be observed that neither of these two points was taken by the respondents either in the proceedings before the Industrial Tribunal or the Labour Appellate Tribunal nor was either of them mentioned in the statement of case filed by the respondents in this Court. They were taken for the first time in the arguments advanced before us by Shri P. K. Chatterjee. We have, however, dealt with the same because we thought that we should not deprive the respondents of the benefit of any argument which could possibly be advanced in their favour. 12. We are, therefore, of opinion that no appeal lay from the decision of the Industrial Tribunal to the Labour Appellate Tribunal, that the Labour Appellate Tribunal had no jurisdiction to interfere with the order made by the Industrial Tribunal granting the appellant permission to discharge the respondents under S. 33 of the Act and that the decision of the Labour Appellate Tribunal is liable to be set aside. 13. | 1[ds]If the appellant had been actuated by any oblique motives and wanted to evade the consequences of its not having held a proper enquiry after submitting a charge-sheet to the respondents one could have understood the criticism made by the Labour Appellate Tribunal in regard to the same. The Industrial Tribunal, however, expressly recorded the finding that the application for leave to discharge the respondents from its employ was bona fide and what the appellant did by making the application dated 6-12-1952, was actuated by an honest motive of exercising its right to discharge the respondents under Cl. 14 (a) of the Standing Orders instead of visiting upon the respondents the penalty of dismissing them from its employ under clause 17 (b) (viii), thereof.The discharge of the respondents was a discharge simpliciter in exercise of the rights of the employer under Cl. 14 (a) of the Standing Orders and was not a punitive discharge under Cl. 17 (b) (viii) thereof and if it was merely a discharge simpliciter, then, no objection could be taken to the same and the appellant would be well within its rights to do so, provided, however, that it was not arbitrary or capricious but was bona fide.The only question relevant to be considered by the Industrial Tribunal would be that in taking the step which it did the appellant was not guilty of any unfair labour practice or victimization. If the Industrial Tribunal did not come to a conclusion adverse to the appellant on these counts, it would have no jurisdiction to refuse the permission asked for by the appellant. Once the Industrial Tribunal was of opinion that the application dated 6-12-1952, and the discharge of the respondents for which the permission of the Industrial Tribunal was sought were in the honest exercise of the appellants rights, no question of law, much less a substantial question of law, could arise in the appeal filed by the respondents against the decision of the Industrial Tribunal and the Labour Appellate Tribunal was clearly in error when it entertained the appealThe argument that the discharge of the respondents though patently it was a discharge simpliciter was, in substance, retrenchment within the meaning of the definition contained in S. 2 (oo) of the Act is equally untenable, for the simple reason that the term "retrenchment" was for the first time defined in the manner in which it has been done by an Ordinance promulgated in October 1953 which was followed by Act 43 of 1953 which was published in the Gazette of India on 23-12-1953. The Industrial Tribunal made its order granting the permission under S. 33 of the Act on 14-5-1953, so that, this definition of the term "retrenchment" could not apply to the facts of the present case. If, therefore, at the relevant period the discharge simpliciter could not be deemed to be retrenchment of the respondents by the appellant, the decision of the Industrial Tribunal could not be said to be one in respect of any of the matters specified in sub-s. (1) (b) of S. 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950. In that view also no appeal could lie from the decision of the Industrial Tribunal to the Labour Appellate Tribunal. We are, therefore, of opinion that no appeal lay from the decision of the Industrial Tribunal to the Labour Appellate Tribunal, that the Labour Appellate Tribunal had no jurisdiction to interfere with the order made by the Industrial Tribunal granting the appellant permission to discharge the respondents under S. 33 of the Act and that the decision of the Labour Appellate Tribunal is liable to be set aside. | 1 | 2,222 | 672 | ### Instruction:
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of the Industrial Disputes (Appellate Tribunal) Act, 1950, the respondents had a right of appeal to the Labour Appellate Tribunal. 7. It is necessary, therefore, to appreciate what was sought to be done by the appellant when it made the application before the Industrial Tribunal on 6-12-1952. This application has been described by the Labour Appellate Tribunal as an application for amendment of the original application which had been filed by the appellant on 21-12-1952, for permission to dismiss the respondents from its employ as per Cl. 17 (b) (viii) of the Standing Orders. It must be noted, however, that what the appellant purported to do by its application of 6-12-1952, was, in effect, to substitute another application asking for permission to discharge the respondents from its employ under Cl. 14 (a) of the Standing Orders, thus abandoning the relief which it had prayed for in the original application. The application dated 6-12-1952, was thus, in substance, a new application made by the appellant to the Industrial Tribunal, no doubt relying upon the facts and circumstances which were set out in the original application but asking for the permission of the Industrial Tribunal to discharge the respondents from its employ under Cl. 14 (a) of the Standing Orders instead of dismissing them from its employ under Cl. 17 (b) (viii) thereof. We do not see how it was not competent to the Industrial Tribunal to allow the appellant to do so. If the appellant had been actuated by any oblique motives and wanted to evade the consequences of its not having held a proper enquiry after submitting a charge-sheet to the respondents one could have understood the criticism made by the Labour Appellate Tribunal in regard to the same. The Industrial Tribunal, however, expressly recorded the finding that the application for leave to discharge the respondents from its employ was bona fide and what the appellant did by making the application dated 6-12-1952, was actuated by an honest motive of exercising its right to discharge the respondents under Cl. 14 (a) of the Standing Orders instead of visiting upon the respondents the penalty of dismissing them from its employ under clause 17 (b) (viii), thereof.The discharge of the respondents was a discharge simpliciter in exercise of the rights of the employer under Cl. 14 (a) of the Standing Orders and was not a punitive discharge under Cl. 17 (b) (viii) thereof and if it was merely a discharge simpliciter, then, no objection could be taken to the same and the appellant would be well within its rights to do so, provided, however, that it was not arbitrary or capricious but was bona fide. 8. The only question relevant to be considered by the Industrial Tribunal would be that in taking the step which it did the appellant was not guilty of any unfair labour practice or victimization. If the Industrial Tribunal did not come to a conclusion adverse to the appellant on these counts, it would have no jurisdiction to refuse the permission asked for by the appellant. Once the Industrial Tribunal was of opinion that the application dated 6-12-1952, and the discharge of the respondents for which the permission of the Industrial Tribunal was sought were in the honest exercise of the appellants rights, no question of law, much less a substantial question of law, could arise in the appeal filed by the respondents against the decision of the Industrial Tribunal and the Labour Appellate Tribunal was clearly in error when it entertained the appeal. 9. In view of the above finding, we do not propose to deal with the contention that the order passed by the Industrial Tribunal u/s. 33 of the Act is not a "decision" within the meaning of that term in S. 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950. 10. The argument that the discharge of the respondents though patently it was a discharge simpliciter was, in substance, retrenchment within the meaning of the definition contained in S. 2 (oo) of the Act is equally untenable, for the simple reason that the term "retrenchment" was for the first time defined in the manner in which it has been done by an Ordinance promulgated in October 1953 which was followed by Act 43 of 1953 which was published in the Gazette of India on 23-12-1953. The Industrial Tribunal made its order granting the permission under S. 33 of the Act on 14-5-1953, so that, this definition of the term "retrenchment" could not apply to the facts of the present case. If, therefore, at the relevant period the discharge simpliciter could not be deemed to be retrenchment of the respondents by the appellant, the decision of the Industrial Tribunal could not be said to be one in respect of any of the matters specified in sub-s. (1) (b) of S. 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950. In that view also no appeal could lie from the decision of the Industrial Tribunal to the Labour Appellate Tribunal. 11. It must be observed that neither of these two points was taken by the respondents either in the proceedings before the Industrial Tribunal or the Labour Appellate Tribunal nor was either of them mentioned in the statement of case filed by the respondents in this Court. They were taken for the first time in the arguments advanced before us by Shri P. K. Chatterjee. We have, however, dealt with the same because we thought that we should not deprive the respondents of the benefit of any argument which could possibly be advanced in their favour. 12. We are, therefore, of opinion that no appeal lay from the decision of the Industrial Tribunal to the Labour Appellate Tribunal, that the Labour Appellate Tribunal had no jurisdiction to interfere with the order made by the Industrial Tribunal granting the appellant permission to discharge the respondents under S. 33 of the Act and that the decision of the Labour Appellate Tribunal is liable to be set aside. 13.
### Response:
1
### Explanation:
If the appellant had been actuated by any oblique motives and wanted to evade the consequences of its not having held a proper enquiry after submitting a charge-sheet to the respondents one could have understood the criticism made by the Labour Appellate Tribunal in regard to the same. The Industrial Tribunal, however, expressly recorded the finding that the application for leave to discharge the respondents from its employ was bona fide and what the appellant did by making the application dated 6-12-1952, was actuated by an honest motive of exercising its right to discharge the respondents under Cl. 14 (a) of the Standing Orders instead of visiting upon the respondents the penalty of dismissing them from its employ under clause 17 (b) (viii), thereof.The discharge of the respondents was a discharge simpliciter in exercise of the rights of the employer under Cl. 14 (a) of the Standing Orders and was not a punitive discharge under Cl. 17 (b) (viii) thereof and if it was merely a discharge simpliciter, then, no objection could be taken to the same and the appellant would be well within its rights to do so, provided, however, that it was not arbitrary or capricious but was bona fide.The only question relevant to be considered by the Industrial Tribunal would be that in taking the step which it did the appellant was not guilty of any unfair labour practice or victimization. If the Industrial Tribunal did not come to a conclusion adverse to the appellant on these counts, it would have no jurisdiction to refuse the permission asked for by the appellant. Once the Industrial Tribunal was of opinion that the application dated 6-12-1952, and the discharge of the respondents for which the permission of the Industrial Tribunal was sought were in the honest exercise of the appellants rights, no question of law, much less a substantial question of law, could arise in the appeal filed by the respondents against the decision of the Industrial Tribunal and the Labour Appellate Tribunal was clearly in error when it entertained the appealThe argument that the discharge of the respondents though patently it was a discharge simpliciter was, in substance, retrenchment within the meaning of the definition contained in S. 2 (oo) of the Act is equally untenable, for the simple reason that the term "retrenchment" was for the first time defined in the manner in which it has been done by an Ordinance promulgated in October 1953 which was followed by Act 43 of 1953 which was published in the Gazette of India on 23-12-1953. The Industrial Tribunal made its order granting the permission under S. 33 of the Act on 14-5-1953, so that, this definition of the term "retrenchment" could not apply to the facts of the present case. If, therefore, at the relevant period the discharge simpliciter could not be deemed to be retrenchment of the respondents by the appellant, the decision of the Industrial Tribunal could not be said to be one in respect of any of the matters specified in sub-s. (1) (b) of S. 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950. In that view also no appeal could lie from the decision of the Industrial Tribunal to the Labour Appellate Tribunal. We are, therefore, of opinion that no appeal lay from the decision of the Industrial Tribunal to the Labour Appellate Tribunal, that the Labour Appellate Tribunal had no jurisdiction to interfere with the order made by the Industrial Tribunal granting the appellant permission to discharge the respondents under S. 33 of the Act and that the decision of the Labour Appellate Tribunal is liable to be set aside.
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Dhena Hembram Vs. District Magistrate, West Dinajpur & Another | Fazl Ali, J.1. An order of detention was passed against the detenu by the District Magistrate, West Dinajpur on 4th May, 1974 under sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971. In pursuance of this order the detenu was arrested on May 8, 1974. On June 6, 1974 the case of the detenu was referred to the Advisory Board which reported on 6th July, 1974 that there were sufficient grounds for detaining the petitioner. The petitioner also made a representation which was received by the Government on June 25, 1974 and it was rejected by the State Government on July 2, 1974.2. It is conceded by learned counsel appearing as amicus curiae for the petitioner that all the formalities required under the provisions of the Maintenance of Internal Security Act have been duly complied with. The grounds served on the petitioner are as follows:1. That on the night of 21/22-1-74 at about 01 hrs. you along with your associates Chandu Murmu, Nazrul Islam alias Bisan and others being armed with fire-arms and other deadly weapons while proceeding to commit dacoity elsewhere were detected at village Bhitar Masum, P. S. Banshihar, District West Dinajpur by one Jolok Debsharma s/o Shahat Debsharma of that village who along with his brother Pashendra Debsharma was going to the village Chowghora under Banshihari P. S. for fetching medicine for their cattle with a burning hurricane lantern in his hand. Being challenged by Shri Jolok Debsharma, you fired one round causing his instaneous death. On hearing the sound of gun fire, the R. G. members on duty and other villagers rushed to the spot when you and your associates fired another three rounds at a time causing gunshot injuries on the person of other four men. When a gun licensee living nearby fired one round, you and your associates fired several rounds indiscriminately to terrorise the villagers. This daring incident created a wide-spread panic in the minds of the law-abiding citizens and a sense of insecurity, fear and fright prevailed in the area for a considerable period disrupting the even tempo of lives of the local people. Some of the witnesses could recognise you and some of your associates but they dared not open their lips against you and some of your associates out of fear of further trouble. Thus you disrupted the public order in Banshihari P. S. area.2. That on the night of 2-3-74 at about 2.30 hrs. you along with your associates Chandu Murmu, Nazrul Islam alias Bisan and many others being armed with fire-arms, spears, Hasuas, bows and arrows etc. raided the house of Pajiruddin Mia s/o Jobaruddin Mia of Narayanpur, P. S. Banshihari, District West Dinajpur as well as five neighbouring houses belonging to Giasuddin Ahmmed, Dhan Mohd. Hayat Mohd. Dasiruddin Mia and Tosadakshya Hossen of the same hamlet and looted away cash, rice, utensils and other household properties valued Rs. 2,000-00. During the commission of the crime, you fired one round to terrorise the R. G. members and other villagers who had approached to resist the crime on hearing hue and cry raised by the inmates of the victims of the houses. As a result of this firing one of the R. G. members sustained gunshot injuries on his person. This incident also created a wide-spread panic in the minds of the law abiding citizens and a sense of insecurity, fear and fright prevailed in the area for a considerable period disrupting the normal flow of avocation of the people of the locality. Some of the witnesses could recognise you and your associates but out of fear of further trouble they dared not speak against you. Thus you disturbed the public order.3. The grounds are absolutely clear and specific and learned counsel has also conceded that the grounds are relevant and do not suffer from any ambiguity. The detenu is alleged to have committed two dacoities, one after the other within a period of two months. In the course of both the occurrences he is said to have used fire arms and threatened witnesses and therefore nobody is available to depose against him. This has undoubtedly disturbed public order. | 0[ds]3. The grounds are absolutely clear and specific and learned counsel has also conceded that the grounds are relevant and do not suffer from any ambiguity. The detenu is alleged to have committed two dacoities, one after the other within a period of two months. In the course of both the occurrences he is said to have used fire arms and threatened witnesses and therefore nobody is available to depose against him. This has undoubtedly disturbed public order. | 0 | 760 | 88 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
Fazl Ali, J.1. An order of detention was passed against the detenu by the District Magistrate, West Dinajpur on 4th May, 1974 under sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971. In pursuance of this order the detenu was arrested on May 8, 1974. On June 6, 1974 the case of the detenu was referred to the Advisory Board which reported on 6th July, 1974 that there were sufficient grounds for detaining the petitioner. The petitioner also made a representation which was received by the Government on June 25, 1974 and it was rejected by the State Government on July 2, 1974.2. It is conceded by learned counsel appearing as amicus curiae for the petitioner that all the formalities required under the provisions of the Maintenance of Internal Security Act have been duly complied with. The grounds served on the petitioner are as follows:1. That on the night of 21/22-1-74 at about 01 hrs. you along with your associates Chandu Murmu, Nazrul Islam alias Bisan and others being armed with fire-arms and other deadly weapons while proceeding to commit dacoity elsewhere were detected at village Bhitar Masum, P. S. Banshihar, District West Dinajpur by one Jolok Debsharma s/o Shahat Debsharma of that village who along with his brother Pashendra Debsharma was going to the village Chowghora under Banshihari P. S. for fetching medicine for their cattle with a burning hurricane lantern in his hand. Being challenged by Shri Jolok Debsharma, you fired one round causing his instaneous death. On hearing the sound of gun fire, the R. G. members on duty and other villagers rushed to the spot when you and your associates fired another three rounds at a time causing gunshot injuries on the person of other four men. When a gun licensee living nearby fired one round, you and your associates fired several rounds indiscriminately to terrorise the villagers. This daring incident created a wide-spread panic in the minds of the law-abiding citizens and a sense of insecurity, fear and fright prevailed in the area for a considerable period disrupting the even tempo of lives of the local people. Some of the witnesses could recognise you and some of your associates but they dared not open their lips against you and some of your associates out of fear of further trouble. Thus you disrupted the public order in Banshihari P. S. area.2. That on the night of 2-3-74 at about 2.30 hrs. you along with your associates Chandu Murmu, Nazrul Islam alias Bisan and many others being armed with fire-arms, spears, Hasuas, bows and arrows etc. raided the house of Pajiruddin Mia s/o Jobaruddin Mia of Narayanpur, P. S. Banshihari, District West Dinajpur as well as five neighbouring houses belonging to Giasuddin Ahmmed, Dhan Mohd. Hayat Mohd. Dasiruddin Mia and Tosadakshya Hossen of the same hamlet and looted away cash, rice, utensils and other household properties valued Rs. 2,000-00. During the commission of the crime, you fired one round to terrorise the R. G. members and other villagers who had approached to resist the crime on hearing hue and cry raised by the inmates of the victims of the houses. As a result of this firing one of the R. G. members sustained gunshot injuries on his person. This incident also created a wide-spread panic in the minds of the law abiding citizens and a sense of insecurity, fear and fright prevailed in the area for a considerable period disrupting the normal flow of avocation of the people of the locality. Some of the witnesses could recognise you and your associates but out of fear of further trouble they dared not speak against you. Thus you disturbed the public order.3. The grounds are absolutely clear and specific and learned counsel has also conceded that the grounds are relevant and do not suffer from any ambiguity. The detenu is alleged to have committed two dacoities, one after the other within a period of two months. In the course of both the occurrences he is said to have used fire arms and threatened witnesses and therefore nobody is available to depose against him. This has undoubtedly disturbed public order.
### Response:
0
### Explanation:
3. The grounds are absolutely clear and specific and learned counsel has also conceded that the grounds are relevant and do not suffer from any ambiguity. The detenu is alleged to have committed two dacoities, one after the other within a period of two months. In the course of both the occurrences he is said to have used fire arms and threatened witnesses and therefore nobody is available to depose against him. This has undoubtedly disturbed public order.
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M/S. SIMPLEX INFRASTRUCTURE LTD Vs. UNION OF INDIA | the 1996 Act on 30 January 2015 before the District Judge, Port Blair for setting aside the arbitral award dated 27 October 2014. On 12 February 2016, the District Judge dismissed the respondents application for want of jurisdiction. It was only on 28 March 2016, that the respondent filed an application under Section 34 of the 1996 Act before the High Court of Calcutta challenging the arbitral award, along with an application for condonation of delay of 514 days. 12. The contention of Mr Aryama Sundaram, learned senior counsel for the appellant is that even if the benefit of Section 14 of the Limitation Act is extended to the respondent in filing the application under Section 34 of the 1996 Act, there would still be a delay of 131 days which could not be condoned in view of the specific statutory limitation prescribed under Section 34(3) of the 1996 Act. The learned senior counsel has tendered the following tabulated chart: chart The appellant has, in this connection, relied on Union of India v Popular Construction Company (supra) and Consolidated Engineering Enterprises v Principal Secretary, Irrigation Department (supra) to support its case. On the other hand, it is the respondents contention that there were no willful latches on its part and the delay was caused due to inevitable administrative difficulties of obtaining directions from higher officials. 13. A plain reading of sub-section (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words but not thereafter in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed in sub-section (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandate. 14. The respondent received the arbitral award on 31 October 2014. Exactly ninety days after the receipt of the award, the respondent filed an application under Section 34 of the 1996 Act before the District Judge, Port Blair on 30 January 2015. On 12 February 2016, the District Judge dismissed the application for want of jurisdiction and on 28 March 2016, the respondent filed an application before the High Court under Section 34 of the 1996 Act for setting aside the arbitral award. After the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court. Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety days. 15. The respondent has relied on the decision of this Court in Union of India v Tecco Trichy Engineers & Contractors (2005) 4 SCC 239 , where this Court had to decide the effective date from which the limitation within the meaning of sub- section (3) of Section 34 of the Act shall be calculated. The Chief Project Manager on behalf of the Southern Railway had entered into a contract with a contractor for construction of a railway bridge. Disputes between the parties were referred to arbitration and an award was delivered in the office of the General Manager, Southern Railway. The Chief Engineer preferred an application against the award under Section 34 of the 1996 Act before the High Court. The learned Single Judge and the Division Bench of the High Court rejected the application holding it as barred by limitation. This Court reversed the order of the High Court and condoned the application for delay. This Court observed that in huge organisations like the Railways having different divisional heads and various departments within the division, the copy of the award had to be received by the person who had knowledge of the proceedings and who would be the best person to understand and appreciate the award and grounds for challenge. This Court found that all arbitral proceedings for the Railways were being represented by the Chief Engineer and the General Manager had simply referred the matter for arbitration as required under the contract. While condoning the delay of three months and 27 days, this Court found that the service of the arbitral award on the General Manager could not be taken to be sufficient notice to constitute the starting point of limitation for the purpose of Section 34(3) of the 1996 Act. The decision in this case has no applicability to the facts of the present case as there is no dispute with respect to the party who received the arbitral award. It is an admitted position that on 27 October 2014, the arbitrator made an award in favour of the appellant and on 31 October 2014, the Union of India received a copy of the award. One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a time- consuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act. | 1[ds]The position of law is well settled with respect to the applicability of Section14 of the Limitation Act to an application filed under Section 34 of the 1996 Act. By applying the facts of the present case to the well settled position of law, we need to assess whether the learned Single Judge of the High Court was justified in condoning the delay for filing an application under Section 34 of the 1996 ActThe respondent submitted an application under Section 34 of the 1996 Act on 30 January 2015 before the District Judge, Port Blair for setting aside the arbitral award dated 27 October 2014. On 12 February 2016, the District Judge dismissed the respondents application for want of jurisdiction. It was only on 28 March 2016, that the respondent filed an application under Section 34 of the 1996 Act before the High Court of Calcutta challenging the arbitral award, along with an application for condonation of delay of 514 daysA plain reading ofn (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned inn (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words but not thereafter in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed inn (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandateThe respondent received the arbitral award on 31 October 2014. Exactly ninety days after the receipt of the award, the respondent filed an application under Section 34 of the 1996 Act before the District Judge, Port Blair on 30 January 2015. On 12 February 2016, the District Judge dismissed the application for want of jurisdiction and on 28 March 2016, the respondent filed an application before the High Court under Section 34 of the 1996 Act for setting aside the arbitral award. After the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court. Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety daysThe decision in this case has no applicability to the facts of the present case as there is no dispute with respect to the party who received the arbitral award. It is an admitted position that on 27 October 2014, the arbitrator made an award in favour of the appellant and on 31 October 2014, the Union of India received a copy of the award. One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a timeconsuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act. | 1 | 3,793 | 683 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
the 1996 Act on 30 January 2015 before the District Judge, Port Blair for setting aside the arbitral award dated 27 October 2014. On 12 February 2016, the District Judge dismissed the respondents application for want of jurisdiction. It was only on 28 March 2016, that the respondent filed an application under Section 34 of the 1996 Act before the High Court of Calcutta challenging the arbitral award, along with an application for condonation of delay of 514 days. 12. The contention of Mr Aryama Sundaram, learned senior counsel for the appellant is that even if the benefit of Section 14 of the Limitation Act is extended to the respondent in filing the application under Section 34 of the 1996 Act, there would still be a delay of 131 days which could not be condoned in view of the specific statutory limitation prescribed under Section 34(3) of the 1996 Act. The learned senior counsel has tendered the following tabulated chart: chart The appellant has, in this connection, relied on Union of India v Popular Construction Company (supra) and Consolidated Engineering Enterprises v Principal Secretary, Irrigation Department (supra) to support its case. On the other hand, it is the respondents contention that there were no willful latches on its part and the delay was caused due to inevitable administrative difficulties of obtaining directions from higher officials. 13. A plain reading of sub-section (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words but not thereafter in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed in sub-section (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandate. 14. The respondent received the arbitral award on 31 October 2014. Exactly ninety days after the receipt of the award, the respondent filed an application under Section 34 of the 1996 Act before the District Judge, Port Blair on 30 January 2015. On 12 February 2016, the District Judge dismissed the application for want of jurisdiction and on 28 March 2016, the respondent filed an application before the High Court under Section 34 of the 1996 Act for setting aside the arbitral award. After the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court. Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety days. 15. The respondent has relied on the decision of this Court in Union of India v Tecco Trichy Engineers & Contractors (2005) 4 SCC 239 , where this Court had to decide the effective date from which the limitation within the meaning of sub- section (3) of Section 34 of the Act shall be calculated. The Chief Project Manager on behalf of the Southern Railway had entered into a contract with a contractor for construction of a railway bridge. Disputes between the parties were referred to arbitration and an award was delivered in the office of the General Manager, Southern Railway. The Chief Engineer preferred an application against the award under Section 34 of the 1996 Act before the High Court. The learned Single Judge and the Division Bench of the High Court rejected the application holding it as barred by limitation. This Court reversed the order of the High Court and condoned the application for delay. This Court observed that in huge organisations like the Railways having different divisional heads and various departments within the division, the copy of the award had to be received by the person who had knowledge of the proceedings and who would be the best person to understand and appreciate the award and grounds for challenge. This Court found that all arbitral proceedings for the Railways were being represented by the Chief Engineer and the General Manager had simply referred the matter for arbitration as required under the contract. While condoning the delay of three months and 27 days, this Court found that the service of the arbitral award on the General Manager could not be taken to be sufficient notice to constitute the starting point of limitation for the purpose of Section 34(3) of the 1996 Act. The decision in this case has no applicability to the facts of the present case as there is no dispute with respect to the party who received the arbitral award. It is an admitted position that on 27 October 2014, the arbitrator made an award in favour of the appellant and on 31 October 2014, the Union of India received a copy of the award. One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a time- consuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act.
### Response:
1
### Explanation:
The position of law is well settled with respect to the applicability of Section14 of the Limitation Act to an application filed under Section 34 of the 1996 Act. By applying the facts of the present case to the well settled position of law, we need to assess whether the learned Single Judge of the High Court was justified in condoning the delay for filing an application under Section 34 of the 1996 ActThe respondent submitted an application under Section 34 of the 1996 Act on 30 January 2015 before the District Judge, Port Blair for setting aside the arbitral award dated 27 October 2014. On 12 February 2016, the District Judge dismissed the respondents application for want of jurisdiction. It was only on 28 March 2016, that the respondent filed an application under Section 34 of the 1996 Act before the High Court of Calcutta challenging the arbitral award, along with an application for condonation of delay of 514 daysA plain reading ofn (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned inn (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words but not thereafter in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed inn (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandateThe respondent received the arbitral award on 31 October 2014. Exactly ninety days after the receipt of the award, the respondent filed an application under Section 34 of the 1996 Act before the District Judge, Port Blair on 30 January 2015. On 12 February 2016, the District Judge dismissed the application for want of jurisdiction and on 28 March 2016, the respondent filed an application before the High Court under Section 34 of the 1996 Act for setting aside the arbitral award. After the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court. Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety daysThe decision in this case has no applicability to the facts of the present case as there is no dispute with respect to the party who received the arbitral award. It is an admitted position that on 27 October 2014, the arbitrator made an award in favour of the appellant and on 31 October 2014, the Union of India received a copy of the award. One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a timeconsuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act.
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Turner Morrison And Co., Ltd Vs. Hungerford Investment Trust Ltd | Hungerford because under the amended. Section 23-A of the Income-tax Act, 1922, that liability was that of Turner Morrison itself. But it was urged on behalf of Turner Morrison that in view of Section 15 (5) of the Limitation Act, 1963, the claim made leaving aside the claim made in respect of the assessment for the assessment year 1955-56 is not barred. Section 15 (5) prescribes:"In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government shall be excluded". 32. It was urged on behalf of Turner Morrison that Hungerford is a non-resident company. Therefore it cannot be said that at any time it was present in India. Hence the suit is not barred. If this argument is correct then there can be no period of limitation for filing a suit against a non-resident company a proposition which is prima facie startling. Can we hold that Section 15 (5) applies to a suit of the type with which we are concerned? That provision contemplates the case of a defendant who has been absent from India. That Article presupposes that defendant was at one time present in India and later he has been absent from India. A person who was never in India cannot be considered as having been absent from India. Factually a company cannot either be present in India or absent from India. But it may have a domicile or residence in India. Sometimes questions have arisen as to what is the place of residence of an incorporated company. Dicey in his Conflict of Laws (4th Edn. P. 152 rule 19) pointing out the difference between the domicile of a natural person and that of a corporation, says:"The domicile of a human being is a fact which on certain points subjects him to the law of a particular country. The domicil of a corporation is a fiction suggested by the fact that a corporation is on certain points, e. g., the jurisdiction of the Courts, subject to the law of a particular country. A man, that is to say, is in some respects subject to the law of England because he has in fact an English domicil; a corporation is by a fiction supposed to have an English residence or domicil because it is in certain respects subject to the law of England. Hence a corporation may very well be considered domiciled or resident, in a country for one purpose and not for another, and hence, too the great uncertainty as to the facts which determine the domicil, or residence of a corporation. In each case the particular question is not, at bottom, whether a corporation has in reality a permanent residence in a particular country, but whether, for certain purposes (e. g. submission to the jurisdiction of the Courts or liability to taxation), a corporation is to be considered as resident in England or in some other country." 33. The question of residence of an insurance company registered and having its registered office in a Foreign Country came up for consideration before the Chancery Division in New York Life Insurance Company v. Public Trustee, 1924-2 Ch. 101. Therein Pollock M. R. quoted with approval the following passage from the judgment of Lord St. Leonards in Carron Iron Co. v. Maclaren, (1955) 5 HLC 416."I think that this company may properly be deemed both Scotch and English. It may for the purposes of jurisdiction, be deemed to have two domiciles. Its business is necessarily carried on by agents and I do not know why its domicile should be considered to be confined to the place where the goods are manufactured.........There may be two domiciles and two jurisdictions; and in this case there are, as I conceive, two domiciles and a double sort of jurisdiction, one in Scotland and one in England; and for the purpose of carrying on their business, one is just as much a domicile of the corporation as the other." 34. The same view was expressed in that case by Warrington, L. J. and Atkin L. J. 35. A Division Bench of the Bombay High Court in Sayaji Rao Gaikwar of Baroda v. Madhavrao Raghunathrao, AIR 1929 Bom 14 dealing with the scope of Section 13 of the Limitation Act 1908 which is identical with the present Section 15 (5) held that Section 13 must be read so as to avoid the obvious absurdity that arises if such corporate bodies are deemed to reside out of British India so that suits against them can never be barred at all. And this can be done by treating them as defendants, who by reason of their special character, are not absent from British India within the meaning of the section, because they have not got the same liberty as private individuals to reside personally in British India and attend to their affairs and they must do so through agents or representatives. Under those circumstances, they can be held to reside in British India in so far as they actually carry on business through their representatives in British India. 36. Section 15 (5) of the Limitation Act, 1963 can be viewed in one of the two ways i.e. that that provision does not apply to incorporated companies at all or alternatively that the incorporated companies must be held to reside in places where they carry on their activities and thus being present in all those places. Hungerford is an Investment company. It had invested large sums of monies in Turner Morrison. Its Board of Directors used to meet in India now and then. It was (through its representatives) attending the general meeting of the share-holders of Turner Morrison. Under these circumstances, it must be held to have been residing in this country and consequently was not absent from this country. Hence Section 15 (5) cannot afford any assistance to Turner Morrison to save the bar of limitation. | 0[ds]We have to seewhether the company in fact had waived the lien it had in respect of the suit claim, assuming that the said claim is otherwise good.As seen earlier at all stages. Turner Morrison took over the responsibility of paying the tax due on behalf of Hungerford. There was no idea of recovering the amount paid as tax, from Hungerford. When Hungerford sold 49 per cent of its shares to Mundhra the same was registered without any objection. It was clearly admitted by the Secretary of Turner Morrison and other witnesses examined on behalf of the that company that the idea of suing Hungerford for recovering the tax paid was conceived for the first time after Mundhra obtained the decree for specific performance. Under these circumstances, it is clear that Turner Morrison had waived the lien that it might have had over the shares held by Hungerford. Hence the only claim that Turner Morrison could have made against Hungerford was a money claim. The present suit was filed on November 15, 1965. Hence it is governed by the provisions ofthe Limitation Act, 1963 which came into force on April 1, 1964. Article 23 of that Act fixes a period of three years for instituting a suit "for money payable to the plaintiff for money paid for the defendant" and the cause of action for the same commences when the money is paid. To the same effect was Article 63 of the Limitation Act, 1908. The amounts claimed in the present suit except those in respect of the assessment for the assessment year 1955-56 were all admittedly paid before November 15, 1962.Hence they are prima facie barred by limitation. So far as the payments made in respect of the assessment for the assessment year 1955 -56 is concerned, Turner Morrison can have no claim against Hungerford because under the amended. Section 23-A of the Income-tax Act, 1922, that liability was that of Turner Morrison itself. But it was urged on behalf of Turner Morrison that in view of Section 15 (5) ofthe Limitation Act, 1963, the claim made leaving aside the claim made in respect of the assessment for the assessment year 1955-56 is not barred. Section 15 (5) prescribes:"In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government shall be excluded"32. It was urged on behalf of Turner Morrison that Hungerford is a non-resident company. Therefore it cannot be said that at any time it was present in India. Hence the suit is not barred. If this argument is correct then there can be no period of limitation for filing a suit against a non-resident company a proposition which is prima facie startling. Can we hold that Section 15 (5) applies to a suit of the type with which we are concerned? That provision contemplates the case of a defendant who has been absent from India. That Article presupposes that defendant was at one time present in India and later he has been absent from India. A person who was never in India cannot be considered as having been absent from India. Factually a company cannot either be present in India or absent from India. But it may have a domicile or residence in India. Sometimes questions have arisen as to what is the place of residence of an incorporated company. Dicey in his Conflict of Laws (4th Edn. P. 152 rule 19) pointing out the difference between the domicile of a natural person and that of a corporation, says:33. The question of residence of an insurance company registered and having its registered office in a Foreign Country came up for consideration before the Chancery Division in New York Life Insurance Company v. Public Trustee, 1924-2 Ch. 101. Therein Pollock M. R. quoted with approval the following passage from the judgment of Lord St. Leonards in Carron Iron Co. v. Maclaren, (1955) 5 HLC 416"I think that this company may properly be deemed both Scotch and English. It may for the purposes of jurisdiction, be deemed to have two domiciles. Its business is necessarily carried on by agents and I do not know why its domicile should be considered to be confined to the place where the goods are manufactured.........There may be two domiciles and two jurisdictions; and in this case there are, as I conceive, two domiciles and a double sort of jurisdiction, one in Scotland and one in England; and for the purpose of carrying on their business, one is just as much a domicile of the corporation as the other."34. The same view was expressed in that case by Warrington, L. J. and Atkin L. J35. A Division Bench of the Bombay High Court in Sayaji Rao Gaikwar of Baroda v. Madhavrao Raghunathrao, AIR 1929 Bom 14 dealing with the scope of Section 13 of the Limitation Act 1908 which is identical with the present Section 15 (5) held that Section 13 must be read so as to avoid the obvious absurdity that arises if such corporate bodies are deemed to reside out of British India so that suits against them can never be barred at all. And this can be done by treating them as defendants, who by reason of their special character, are not absent from British India within the meaning of the section, because they have not got the same liberty as private individuals to reside personally in British India and attend to their affairs and they must do so through agents or representatives. Under those circumstances, they can be held to reside in British India in so far as they actually carry on business through their representatives in British India36. Section 15 (5) ofthe Limitation Act, 1963 can be viewed in one of the two ways i.e. that that provision does not apply to incorporated companies at all or alternatively that the incorporated companies must be held to reside in places where they carry on their activities and thus being present in all those places. Hungerford is an Investment company. It had invested large sums of monies in Turner Morrison. Its Board of Directors used to meet in India now and then. It was (through its representatives) attending the general meeting of the share-holders of Turner Morrison. Under these circumstances, it must be held to have been residing in this country and consequently was not absent from this country. Hence Section 15 (5) cannot afford any assistance to Turner Morrison to save the bar of limitation. | 0 | 8,645 | 1,213 | ### Instruction:
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Hungerford because under the amended. Section 23-A of the Income-tax Act, 1922, that liability was that of Turner Morrison itself. But it was urged on behalf of Turner Morrison that in view of Section 15 (5) of the Limitation Act, 1963, the claim made leaving aside the claim made in respect of the assessment for the assessment year 1955-56 is not barred. Section 15 (5) prescribes:"In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government shall be excluded". 32. It was urged on behalf of Turner Morrison that Hungerford is a non-resident company. Therefore it cannot be said that at any time it was present in India. Hence the suit is not barred. If this argument is correct then there can be no period of limitation for filing a suit against a non-resident company a proposition which is prima facie startling. Can we hold that Section 15 (5) applies to a suit of the type with which we are concerned? That provision contemplates the case of a defendant who has been absent from India. That Article presupposes that defendant was at one time present in India and later he has been absent from India. A person who was never in India cannot be considered as having been absent from India. Factually a company cannot either be present in India or absent from India. But it may have a domicile or residence in India. Sometimes questions have arisen as to what is the place of residence of an incorporated company. Dicey in his Conflict of Laws (4th Edn. P. 152 rule 19) pointing out the difference between the domicile of a natural person and that of a corporation, says:"The domicile of a human being is a fact which on certain points subjects him to the law of a particular country. The domicil of a corporation is a fiction suggested by the fact that a corporation is on certain points, e. g., the jurisdiction of the Courts, subject to the law of a particular country. A man, that is to say, is in some respects subject to the law of England because he has in fact an English domicil; a corporation is by a fiction supposed to have an English residence or domicil because it is in certain respects subject to the law of England. Hence a corporation may very well be considered domiciled or resident, in a country for one purpose and not for another, and hence, too the great uncertainty as to the facts which determine the domicil, or residence of a corporation. In each case the particular question is not, at bottom, whether a corporation has in reality a permanent residence in a particular country, but whether, for certain purposes (e. g. submission to the jurisdiction of the Courts or liability to taxation), a corporation is to be considered as resident in England or in some other country." 33. The question of residence of an insurance company registered and having its registered office in a Foreign Country came up for consideration before the Chancery Division in New York Life Insurance Company v. Public Trustee, 1924-2 Ch. 101. Therein Pollock M. R. quoted with approval the following passage from the judgment of Lord St. Leonards in Carron Iron Co. v. Maclaren, (1955) 5 HLC 416."I think that this company may properly be deemed both Scotch and English. It may for the purposes of jurisdiction, be deemed to have two domiciles. Its business is necessarily carried on by agents and I do not know why its domicile should be considered to be confined to the place where the goods are manufactured.........There may be two domiciles and two jurisdictions; and in this case there are, as I conceive, two domiciles and a double sort of jurisdiction, one in Scotland and one in England; and for the purpose of carrying on their business, one is just as much a domicile of the corporation as the other." 34. The same view was expressed in that case by Warrington, L. J. and Atkin L. J. 35. A Division Bench of the Bombay High Court in Sayaji Rao Gaikwar of Baroda v. Madhavrao Raghunathrao, AIR 1929 Bom 14 dealing with the scope of Section 13 of the Limitation Act 1908 which is identical with the present Section 15 (5) held that Section 13 must be read so as to avoid the obvious absurdity that arises if such corporate bodies are deemed to reside out of British India so that suits against them can never be barred at all. And this can be done by treating them as defendants, who by reason of their special character, are not absent from British India within the meaning of the section, because they have not got the same liberty as private individuals to reside personally in British India and attend to their affairs and they must do so through agents or representatives. Under those circumstances, they can be held to reside in British India in so far as they actually carry on business through their representatives in British India. 36. Section 15 (5) of the Limitation Act, 1963 can be viewed in one of the two ways i.e. that that provision does not apply to incorporated companies at all or alternatively that the incorporated companies must be held to reside in places where they carry on their activities and thus being present in all those places. Hungerford is an Investment company. It had invested large sums of monies in Turner Morrison. Its Board of Directors used to meet in India now and then. It was (through its representatives) attending the general meeting of the share-holders of Turner Morrison. Under these circumstances, it must be held to have been residing in this country and consequently was not absent from this country. Hence Section 15 (5) cannot afford any assistance to Turner Morrison to save the bar of limitation.
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### Explanation:
that the idea of suing Hungerford for recovering the tax paid was conceived for the first time after Mundhra obtained the decree for specific performance. Under these circumstances, it is clear that Turner Morrison had waived the lien that it might have had over the shares held by Hungerford. Hence the only claim that Turner Morrison could have made against Hungerford was a money claim. The present suit was filed on November 15, 1965. Hence it is governed by the provisions ofthe Limitation Act, 1963 which came into force on April 1, 1964. Article 23 of that Act fixes a period of three years for instituting a suit "for money payable to the plaintiff for money paid for the defendant" and the cause of action for the same commences when the money is paid. To the same effect was Article 63 of the Limitation Act, 1908. The amounts claimed in the present suit except those in respect of the assessment for the assessment year 1955-56 were all admittedly paid before November 15, 1962.Hence they are prima facie barred by limitation. So far as the payments made in respect of the assessment for the assessment year 1955 -56 is concerned, Turner Morrison can have no claim against Hungerford because under the amended. Section 23-A of the Income-tax Act, 1922, that liability was that of Turner Morrison itself. But it was urged on behalf of Turner Morrison that in view of Section 15 (5) ofthe Limitation Act, 1963, the claim made leaving aside the claim made in respect of the assessment for the assessment year 1955-56 is not barred. Section 15 (5) prescribes:"In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government shall be excluded"32. It was urged on behalf of Turner Morrison that Hungerford is a non-resident company. Therefore it cannot be said that at any time it was present in India. Hence the suit is not barred. If this argument is correct then there can be no period of limitation for filing a suit against a non-resident company a proposition which is prima facie startling. Can we hold that Section 15 (5) applies to a suit of the type with which we are concerned? That provision contemplates the case of a defendant who has been absent from India. That Article presupposes that defendant was at one time present in India and later he has been absent from India. A person who was never in India cannot be considered as having been absent from India. Factually a company cannot either be present in India or absent from India. But it may have a domicile or residence in India. Sometimes questions have arisen as to what is the place of residence of an incorporated company. Dicey in his Conflict of Laws (4th Edn. P. 152 rule 19) pointing out the difference between the domicile of a natural person and that of a corporation, says:33. The question of residence of an insurance company registered and having its registered office in a Foreign Country came up for consideration before the Chancery Division in New York Life Insurance Company v. Public Trustee, 1924-2 Ch. 101. Therein Pollock M. R. quoted with approval the following passage from the judgment of Lord St. Leonards in Carron Iron Co. v. Maclaren, (1955) 5 HLC 416"I think that this company may properly be deemed both Scotch and English. It may for the purposes of jurisdiction, be deemed to have two domiciles. Its business is necessarily carried on by agents and I do not know why its domicile should be considered to be confined to the place where the goods are manufactured.........There may be two domiciles and two jurisdictions; and in this case there are, as I conceive, two domiciles and a double sort of jurisdiction, one in Scotland and one in England; and for the purpose of carrying on their business, one is just as much a domicile of the corporation as the other."34. The same view was expressed in that case by Warrington, L. J. and Atkin L. J35. A Division Bench of the Bombay High Court in Sayaji Rao Gaikwar of Baroda v. Madhavrao Raghunathrao, AIR 1929 Bom 14 dealing with the scope of Section 13 of the Limitation Act 1908 which is identical with the present Section 15 (5) held that Section 13 must be read so as to avoid the obvious absurdity that arises if such corporate bodies are deemed to reside out of British India so that suits against them can never be barred at all. And this can be done by treating them as defendants, who by reason of their special character, are not absent from British India within the meaning of the section, because they have not got the same liberty as private individuals to reside personally in British India and attend to their affairs and they must do so through agents or representatives. Under those circumstances, they can be held to reside in British India in so far as they actually carry on business through their representatives in British India36. Section 15 (5) ofthe Limitation Act, 1963 can be viewed in one of the two ways i.e. that that provision does not apply to incorporated companies at all or alternatively that the incorporated companies must be held to reside in places where they carry on their activities and thus being present in all those places. Hungerford is an Investment company. It had invested large sums of monies in Turner Morrison. Its Board of Directors used to meet in India now and then. It was (through its representatives) attending the general meeting of the share-holders of Turner Morrison. Under these circumstances, it must be held to have been residing in this country and consequently was not absent from this country. Hence Section 15 (5) cannot afford any assistance to Turner Morrison to save the bar of limitation.
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MUNI REDDY Vs. C.NAGARAJU | in the disposed of appeal (RSA No. 804/2001) and complained therein that the compromise arrived at between the parties, which resulted in disposal of the second appeal, is not binding on him and prayed for recalling of the order dated 10.04.2002. 8. The High Court, by order dated 23.07.2002 dismissed the application filed by defendant No. 2 (respondent No. 1 herein). Aggrieved by the said order, defendant No.2 filed appeals by way of special leave in this Court. By order dated 04.08.2003, this Court allowed the appeals (Civil Appeal Nos. 5531-32/2003 etc.etc.) and while setting aside the order dated 23.07.2002 remitted the matter to the High Court for fresh consideration in accordance with law including to decide the question of consideration of the compromise petition. The order reads as under:?Leave granted. When a Second appeal came up for consideration before the High Court, it disposed of the same in the following terms: "Mr. Siddappa, learned counsel files power for respondent No.2. Both the sides have filed the compromise petition. All the parties are present. Advocate for both sides are also present. The compromise petition is allowed. In view of the compromise petition, the appeal stands disposed of. Draw the decree accordingly." Whether the compromise had really been entered into between the parties or not was not inquired into by the High Court in terms of Order XXIII Civil Procedure Code. Further, it is not clear as to the impact of the Memo filed before the Court on the appeal as a whole. The same should have been examined by the High Court and a decision should have been taken by it. Therefore, we set aside the order made by the High Court and remit the matter to the High Court for fresh consideration in accordance with law including the question of consideration of the compromise petition. The appeals are allowed accordingly.?9. After the remand, the High Court took up the matter and on few dates fixed the case for recording evidence of the parties to decide the question of genuineness of the compromise as is clear from the order sheets dated 26.07.2006, 03.09.2007, 26.10.2007, 12.11.2007, 18.12.2007 (Annexures P- 8/9). 10. However, the High Court then did not pursue the proceedings in relation to the genuineness of the compromise and went on to observe that in terms of this Courts order dated 04.8.2003, once the matter is examined on merits, there is no need to go into the genuineness of the compromise petition. This is what the High Court observed:?8…………..I do not find any need to adjourn the matter to some other date for cross examination of respondent No.2 who has filed his affidavit purporting to be by way of evidence in support of his application for setting aside the compromise petition for two reasons. Firstly, the Supreme Court has itself set aside the judgment/compromise decree passed by this Court on 10.04.2002. Secondly, the Supreme Court has also observed that the matter has to be examined on merits and including the genuineness of the compromise or otherwise.9. It is obvious that if the matter is to be examined on merits, there is no need for going into the genuineness of the compromise petition or otherwise and therefore I do not propose to look into the contents of the affidavit itself which if at all looked into and is to be accepted requires the necessity for cross examination. Instead, I propose to proceed to judgment on merits of the appeal and, therefore, there is no requirement of cross examination of respondent No.2 as the very affidavit is not looked into.?11. Having thus observed, the High Court did not consider it necessary to examine the genuineness of the compromise petition impugned by defendant No. 2 in his application dated 23.07.2002 and proceeded to decide the second appeal on merits and by impugned order 02.01.2008 dismissed the second appeal. 12. It is against this order of the High Court, the plaintiffs have felt aggrieved and filed the present appeal by way of special leave in this Court. 13. Mr. Trideep Pais, learned counsel appeared for the appellants and Mr. K. Radhakrishnan, learned senior counsel for the respondents. 14. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order remand the case to the High Court for deciding the matter afresh as directed hereinbelow. 15. In our considered opinion, the High Court erred in interpreting the order of this Court dated 04.08.2003 quoted supra. On mere reading of the order dated 03.08.2003, it is clear that this Court remanded the matter to the High Court with a request to decide it afresh in accordance with law including the question of consideration of the compromise petition. This implied that the question of consideration of compromise petition was required to be decided first. It is for the simple reason that if the compromise was held to be legal and proper, there was no need to decide the second appeal on merits. In other words, the need to decide the second appeal on merits would have arisen only if the compromise would have been held illegal and not binding on the parties concerned. 16. The High Court, therefore, erred in not considering the question of genuineness and legality of the compromise as complained by defendant No. 2 and straightaway proceeded to decide the second appeal on merits. In this process undertaken by the High Court, the question as to whether the compromise was legal or not could not be gone into on its merits, which it ought to have been gone into in the first instance. 17. In the light of the foregoing discussion, the impugned order of the High Court is not legally sustainable as the same was passed without properly appreciating the purport of the directions of this Court contained in the order dated 04.08.2003. It, therefore, caused prejudice to the rights of the parties. | 1[ds]15. In our considered opinion, the High Court erred in interpreting the order of this Court dated 04.08.2003 quoted supra. On mere reading of the order dated 03.08.2003, it is clear that this Court remanded the matter to the High Court with a request to decide it afresh in accordance with law including the question of consideration of the compromise petition. This implied that the question ofconsideration of compromise petition was required to be decided first. It is for the simple reason that if the compromise was held to be legal and proper, there was no need to decide the second appeal on merits. In other words, the need to decide the second appeal on merits would have arisen only if the compromise would have been held illegal and not binding on the parties concerned.The High Court,in not considering the question of genuineness and legality of the compromise as complained by defendant No. 2 and straightaway proceeded to decide the second appeal on merits. In this process undertaken by the High Court, the question as to whether the compromise was legal or not could not be gone into on its merits, which it ought to have been gone into in the first instance.n the light ofthe foregoing discussion, the impugnedorder of the High Court is not legally sustainable as the same was passed without properly appreciating the purport of the directions of this Court contained in the order dated 04.08.2003. It, therefore, caused prejudice to the rights of the parties. | 1 | 1,429 | 274 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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in the disposed of appeal (RSA No. 804/2001) and complained therein that the compromise arrived at between the parties, which resulted in disposal of the second appeal, is not binding on him and prayed for recalling of the order dated 10.04.2002. 8. The High Court, by order dated 23.07.2002 dismissed the application filed by defendant No. 2 (respondent No. 1 herein). Aggrieved by the said order, defendant No.2 filed appeals by way of special leave in this Court. By order dated 04.08.2003, this Court allowed the appeals (Civil Appeal Nos. 5531-32/2003 etc.etc.) and while setting aside the order dated 23.07.2002 remitted the matter to the High Court for fresh consideration in accordance with law including to decide the question of consideration of the compromise petition. The order reads as under:?Leave granted. When a Second appeal came up for consideration before the High Court, it disposed of the same in the following terms: "Mr. Siddappa, learned counsel files power for respondent No.2. Both the sides have filed the compromise petition. All the parties are present. Advocate for both sides are also present. The compromise petition is allowed. In view of the compromise petition, the appeal stands disposed of. Draw the decree accordingly." Whether the compromise had really been entered into between the parties or not was not inquired into by the High Court in terms of Order XXIII Civil Procedure Code. Further, it is not clear as to the impact of the Memo filed before the Court on the appeal as a whole. The same should have been examined by the High Court and a decision should have been taken by it. Therefore, we set aside the order made by the High Court and remit the matter to the High Court for fresh consideration in accordance with law including the question of consideration of the compromise petition. The appeals are allowed accordingly.?9. After the remand, the High Court took up the matter and on few dates fixed the case for recording evidence of the parties to decide the question of genuineness of the compromise as is clear from the order sheets dated 26.07.2006, 03.09.2007, 26.10.2007, 12.11.2007, 18.12.2007 (Annexures P- 8/9). 10. However, the High Court then did not pursue the proceedings in relation to the genuineness of the compromise and went on to observe that in terms of this Courts order dated 04.8.2003, once the matter is examined on merits, there is no need to go into the genuineness of the compromise petition. This is what the High Court observed:?8…………..I do not find any need to adjourn the matter to some other date for cross examination of respondent No.2 who has filed his affidavit purporting to be by way of evidence in support of his application for setting aside the compromise petition for two reasons. Firstly, the Supreme Court has itself set aside the judgment/compromise decree passed by this Court on 10.04.2002. Secondly, the Supreme Court has also observed that the matter has to be examined on merits and including the genuineness of the compromise or otherwise.9. It is obvious that if the matter is to be examined on merits, there is no need for going into the genuineness of the compromise petition or otherwise and therefore I do not propose to look into the contents of the affidavit itself which if at all looked into and is to be accepted requires the necessity for cross examination. Instead, I propose to proceed to judgment on merits of the appeal and, therefore, there is no requirement of cross examination of respondent No.2 as the very affidavit is not looked into.?11. Having thus observed, the High Court did not consider it necessary to examine the genuineness of the compromise petition impugned by defendant No. 2 in his application dated 23.07.2002 and proceeded to decide the second appeal on merits and by impugned order 02.01.2008 dismissed the second appeal. 12. It is against this order of the High Court, the plaintiffs have felt aggrieved and filed the present appeal by way of special leave in this Court. 13. Mr. Trideep Pais, learned counsel appeared for the appellants and Mr. K. Radhakrishnan, learned senior counsel for the respondents. 14. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order remand the case to the High Court for deciding the matter afresh as directed hereinbelow. 15. In our considered opinion, the High Court erred in interpreting the order of this Court dated 04.08.2003 quoted supra. On mere reading of the order dated 03.08.2003, it is clear that this Court remanded the matter to the High Court with a request to decide it afresh in accordance with law including the question of consideration of the compromise petition. This implied that the question of consideration of compromise petition was required to be decided first. It is for the simple reason that if the compromise was held to be legal and proper, there was no need to decide the second appeal on merits. In other words, the need to decide the second appeal on merits would have arisen only if the compromise would have been held illegal and not binding on the parties concerned. 16. The High Court, therefore, erred in not considering the question of genuineness and legality of the compromise as complained by defendant No. 2 and straightaway proceeded to decide the second appeal on merits. In this process undertaken by the High Court, the question as to whether the compromise was legal or not could not be gone into on its merits, which it ought to have been gone into in the first instance. 17. In the light of the foregoing discussion, the impugned order of the High Court is not legally sustainable as the same was passed without properly appreciating the purport of the directions of this Court contained in the order dated 04.08.2003. It, therefore, caused prejudice to the rights of the parties.
### Response:
1
### Explanation:
15. In our considered opinion, the High Court erred in interpreting the order of this Court dated 04.08.2003 quoted supra. On mere reading of the order dated 03.08.2003, it is clear that this Court remanded the matter to the High Court with a request to decide it afresh in accordance with law including the question of consideration of the compromise petition. This implied that the question ofconsideration of compromise petition was required to be decided first. It is for the simple reason that if the compromise was held to be legal and proper, there was no need to decide the second appeal on merits. In other words, the need to decide the second appeal on merits would have arisen only if the compromise would have been held illegal and not binding on the parties concerned.The High Court,in not considering the question of genuineness and legality of the compromise as complained by defendant No. 2 and straightaway proceeded to decide the second appeal on merits. In this process undertaken by the High Court, the question as to whether the compromise was legal or not could not be gone into on its merits, which it ought to have been gone into in the first instance.n the light ofthe foregoing discussion, the impugnedorder of the High Court is not legally sustainable as the same was passed without properly appreciating the purport of the directions of this Court contained in the order dated 04.08.2003. It, therefore, caused prejudice to the rights of the parties.
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Union of India and Another Vs. Bhavnagar Salt and Industrial Works Private Limited | to revise the terms thereof;(ii) the agreement date March 29, 1951, was valid, subsisting and binding on the defendants and the stipulated rates were not liable to be varied except in the manner provided in Clause 8-A of the agreement. >2. On the basis of the aforesaid contentions a claim for refund of Rs. 1, 49, 667.09 was made. The defendants maintained that the suit was not maintainable as under the provisions of the Indian Railways Act, 1890, the matter came within the purview of the Statutory Rates Tribunal; the agreement was not binding and at any rate was available to be unilaterally modified and the plaintiff had no cause of action3. The trial court dismissed the suit by finding all the material issues against the plaintiff but the High Court is appeal by the plaintiff reversed the judgment and decreed the suit for a sum of Rs. 1, 25, 264.87. 4. The company had entered into an arrangement with the ruler of the ex-Bhavnagar State relating to manufacture, sale and export of salt from the Bhavnagar State. Under the said contract, the haulage charges had been fixed. The Bhavnagar State Railway which was owned by the former State by that name, in 1948, came within the Kathiawar State which came to be known as the United State of Saurashtra. With the Constitution coming into force in 1950, the Saurashtra Railway was taken over by the Government of India and on March 29, 1951, an agreement was executed between the plaintiff and the defendants fixing the terms and conditions of working. 5. In December 1951, the Saurashtra Railway merged into the Western Railway. Some time in June 1955, the Western Railway intimated the respondents that Clause 8-A of the 1951 agreement required revision and the rates stipulated therein were to be enhanced with reference to the placement charges and carriage from the railway siding to the Concrete Jetty. The charges were enhanced from time to time. The plaintiff entered into correspondence and raised objection and ultimately came before the court alleging that the enhancements were illegal and payments has been made under compulsion and protest and sued for recovery by way of refund. It was the plaintiffs contention that the rates were not open to revision and the contractual rates of agreement of March 1951 were binding. 6. Three questions in the main arise for determination: (1) Whether the claim was maintainable in civil court in view of the provisions contained in Chapter V of the Indian Railways Act, 1890 ?(2) If the agreement of March 1951 was an independent one entered into between Western Railway and the plaintiff and not based upon the earlier agreement of 1943, and if it was an independent agreement, whether the Railways Act authorised variation of the Tariff ?(3) Whether Javak No. 582 (Ex. 127) was at the most a licence and the powers exercisable by the then ruler were available to be exercised by the defendants ? The terms of the Javak permitted variation and the defendants were, therefore, entitled to claim higher rates? 7. We have heard learned counsel for the parties at considerable length and are of the view that the trial court was right in its conclusion that Javak No. 582 and Order No. 57 of the ruler of Bhavnagar did not give rise to a contract and at the most amounted to a licence. The contents of these documents are on the record and it is not necessary to reproduce them. As early as January 9, 1950, (Ex. 189) the Government of the United State of Saurashtra decided to vary the term of the Javak and the order was made in the name of Raj Pramukh. The High Court went wrong in assuming that the order of the Saurashtra Government amounted to recognition of the arrangement of Ex. 127. Even conceding that Ex. 127 amounted to something more than a licence, we do not think it precluded the ex-ruler of Bhavnagar State to change the terms and if that was so, the power which was vested in the ex-ruler was certainly available to be exercised by the successors. That was the view taken by the trial court and we are inclined to accept the same as appropriate. 8. Once we take the view that Ex. 127 was a licence and the ex-ruler was not precluded from varying its terms, the foundation of the plaintiffs case falls. The agreement of 1951 was an independent one and the High Court is not right in holding that it was a part of Ex. 127 or for working out its terms, the aid of Ex. 127 was available. 9. The rates were fixed either in 1943 and 1951 the arrangement of 1943 was to remain valid for more than half a century. Series of changes took place in the years to follow and apart from the fact that the ownership of the railway changed and ultimately became a part of the Western Railway, unprecedented changes swept over the entire country. In this process and in the years to follow, there has been escalation of costs in every field of activity and it would indeed be unconscionable to direct the railways to continue the rates fixed in 1943 for a period which would expire only six years hence. In the facts and circumstances of this case, we are inclined to agree with the counsel for the appellants that the learned trial Judge had taken a very pragmatic view of the situation. On facts we are inclined to agree with the position that the plaintiff-respondent was not entitled to sue for recovery of the money. 10. Since we have reached this conclusion which is sufficient to dispose of the suit, in our opinion, it is unnecessary to go into the legal question as to whether a suit in the civil court was maintainable for the relief claimed on the basis that the claim was cognizable by the Railway Rates Tribunal. That question is left open. | 1[ds]7. We have heard learned counsel for the parties at considerable length and are of the view that the trial court was right in its conclusion that Javak No. 582 and Order No. 57 of the ruler of Bhavnagar did not give rise to a contract and at the most amounted to a licence. The contents of these documents are on the record and it is not necessary to reproduce them. As early as January 9, 1950, (Ex. 189) the Government of the United State of Saurashtra decided to vary the term of the Javak and the order was made in the name of Raj Pramukh. The High Court went wrong in assuming that the order of the Saurashtra Government amounted to recognition of the arrangement of Ex. 127. Even conceding that Ex. 127 amounted to something more than a licence, we do not think it precluded theof Bhavnagar State to change the terms and if that was so, the power which was vested in thewas certainly available to be exercised by the successors. That was the view taken by the trial court and we are inclined to accept the same asOnce we take the view that Ex. 127 was a licence and thewas not precluded from varying its terms, the foundation of the plaintiffs case falls. The agreement of 1951 was an independent one and the High Court is not right in holding that it was a part of Ex. 127 or for working out its terms, the aid of Ex. 127 wasThe rates were fixed either in 1943 and 1951 the arrangement of 1943 was to remain valid for more than half a century. Series of changes took place in the years to follow and apart from the fact that the ownership of the railway changed and ultimately became a part of the Western Railway, unprecedented changes swept over the entire country. In this process and in the years to follow, there has been escalation of costs in every field of activity and it would indeed be unconscionable to direct the railways to continue the rates fixed in 1943 for a period which would expire only six years hence. In the facts and circumstances of this case, we are inclined to agree with the counsel for the appellants that the learned trial Judge had taken a very pragmatic view of the situation. On facts we are inclined to agree with the position that thewas not entitled to sue for recovery of theSince we have reached this conclusion which is sufficient to dispose of the suit, in our opinion, it is unnecessary to go into the legal question as to whether a suit in the civil court was maintainable for the relief claimed on the basis that the claim was cognizable by the Railway Rates Tribunal. That question is left open | 1 | 1,221 | 509 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
to revise the terms thereof;(ii) the agreement date March 29, 1951, was valid, subsisting and binding on the defendants and the stipulated rates were not liable to be varied except in the manner provided in Clause 8-A of the agreement. >2. On the basis of the aforesaid contentions a claim for refund of Rs. 1, 49, 667.09 was made. The defendants maintained that the suit was not maintainable as under the provisions of the Indian Railways Act, 1890, the matter came within the purview of the Statutory Rates Tribunal; the agreement was not binding and at any rate was available to be unilaterally modified and the plaintiff had no cause of action3. The trial court dismissed the suit by finding all the material issues against the plaintiff but the High Court is appeal by the plaintiff reversed the judgment and decreed the suit for a sum of Rs. 1, 25, 264.87. 4. The company had entered into an arrangement with the ruler of the ex-Bhavnagar State relating to manufacture, sale and export of salt from the Bhavnagar State. Under the said contract, the haulage charges had been fixed. The Bhavnagar State Railway which was owned by the former State by that name, in 1948, came within the Kathiawar State which came to be known as the United State of Saurashtra. With the Constitution coming into force in 1950, the Saurashtra Railway was taken over by the Government of India and on March 29, 1951, an agreement was executed between the plaintiff and the defendants fixing the terms and conditions of working. 5. In December 1951, the Saurashtra Railway merged into the Western Railway. Some time in June 1955, the Western Railway intimated the respondents that Clause 8-A of the 1951 agreement required revision and the rates stipulated therein were to be enhanced with reference to the placement charges and carriage from the railway siding to the Concrete Jetty. The charges were enhanced from time to time. The plaintiff entered into correspondence and raised objection and ultimately came before the court alleging that the enhancements were illegal and payments has been made under compulsion and protest and sued for recovery by way of refund. It was the plaintiffs contention that the rates were not open to revision and the contractual rates of agreement of March 1951 were binding. 6. Three questions in the main arise for determination: (1) Whether the claim was maintainable in civil court in view of the provisions contained in Chapter V of the Indian Railways Act, 1890 ?(2) If the agreement of March 1951 was an independent one entered into between Western Railway and the plaintiff and not based upon the earlier agreement of 1943, and if it was an independent agreement, whether the Railways Act authorised variation of the Tariff ?(3) Whether Javak No. 582 (Ex. 127) was at the most a licence and the powers exercisable by the then ruler were available to be exercised by the defendants ? The terms of the Javak permitted variation and the defendants were, therefore, entitled to claim higher rates? 7. We have heard learned counsel for the parties at considerable length and are of the view that the trial court was right in its conclusion that Javak No. 582 and Order No. 57 of the ruler of Bhavnagar did not give rise to a contract and at the most amounted to a licence. The contents of these documents are on the record and it is not necessary to reproduce them. As early as January 9, 1950, (Ex. 189) the Government of the United State of Saurashtra decided to vary the term of the Javak and the order was made in the name of Raj Pramukh. The High Court went wrong in assuming that the order of the Saurashtra Government amounted to recognition of the arrangement of Ex. 127. Even conceding that Ex. 127 amounted to something more than a licence, we do not think it precluded the ex-ruler of Bhavnagar State to change the terms and if that was so, the power which was vested in the ex-ruler was certainly available to be exercised by the successors. That was the view taken by the trial court and we are inclined to accept the same as appropriate. 8. Once we take the view that Ex. 127 was a licence and the ex-ruler was not precluded from varying its terms, the foundation of the plaintiffs case falls. The agreement of 1951 was an independent one and the High Court is not right in holding that it was a part of Ex. 127 or for working out its terms, the aid of Ex. 127 was available. 9. The rates were fixed either in 1943 and 1951 the arrangement of 1943 was to remain valid for more than half a century. Series of changes took place in the years to follow and apart from the fact that the ownership of the railway changed and ultimately became a part of the Western Railway, unprecedented changes swept over the entire country. In this process and in the years to follow, there has been escalation of costs in every field of activity and it would indeed be unconscionable to direct the railways to continue the rates fixed in 1943 for a period which would expire only six years hence. In the facts and circumstances of this case, we are inclined to agree with the counsel for the appellants that the learned trial Judge had taken a very pragmatic view of the situation. On facts we are inclined to agree with the position that the plaintiff-respondent was not entitled to sue for recovery of the money. 10. Since we have reached this conclusion which is sufficient to dispose of the suit, in our opinion, it is unnecessary to go into the legal question as to whether a suit in the civil court was maintainable for the relief claimed on the basis that the claim was cognizable by the Railway Rates Tribunal. That question is left open.
### Response:
1
### Explanation:
7. We have heard learned counsel for the parties at considerable length and are of the view that the trial court was right in its conclusion that Javak No. 582 and Order No. 57 of the ruler of Bhavnagar did not give rise to a contract and at the most amounted to a licence. The contents of these documents are on the record and it is not necessary to reproduce them. As early as January 9, 1950, (Ex. 189) the Government of the United State of Saurashtra decided to vary the term of the Javak and the order was made in the name of Raj Pramukh. The High Court went wrong in assuming that the order of the Saurashtra Government amounted to recognition of the arrangement of Ex. 127. Even conceding that Ex. 127 amounted to something more than a licence, we do not think it precluded theof Bhavnagar State to change the terms and if that was so, the power which was vested in thewas certainly available to be exercised by the successors. That was the view taken by the trial court and we are inclined to accept the same asOnce we take the view that Ex. 127 was a licence and thewas not precluded from varying its terms, the foundation of the plaintiffs case falls. The agreement of 1951 was an independent one and the High Court is not right in holding that it was a part of Ex. 127 or for working out its terms, the aid of Ex. 127 wasThe rates were fixed either in 1943 and 1951 the arrangement of 1943 was to remain valid for more than half a century. Series of changes took place in the years to follow and apart from the fact that the ownership of the railway changed and ultimately became a part of the Western Railway, unprecedented changes swept over the entire country. In this process and in the years to follow, there has been escalation of costs in every field of activity and it would indeed be unconscionable to direct the railways to continue the rates fixed in 1943 for a period which would expire only six years hence. In the facts and circumstances of this case, we are inclined to agree with the counsel for the appellants that the learned trial Judge had taken a very pragmatic view of the situation. On facts we are inclined to agree with the position that thewas not entitled to sue for recovery of theSince we have reached this conclusion which is sufficient to dispose of the suit, in our opinion, it is unnecessary to go into the legal question as to whether a suit in the civil court was maintainable for the relief claimed on the basis that the claim was cognizable by the Railway Rates Tribunal. That question is left open
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Narendrajit Singh Anr Vs. State Of U.P. & Anr | enter upon and take possession of the land if the same be needed owing to any sudden change in the channel of any navigable river or other unforeseen emergency it becomes necessary for any Railway administration to acquire the immediate possession of any land or for incidental purposes. Sub-section (4) of the section provides :"In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land al any time after the publication of the notification under Sec. 4, sub-section (1)."8. It becomes clear from a perusal of the said sections of the Act that the process of acquisition must start with a notification under Section 4. Even in extremely urgent cases like those mentioned in sub-section (2) of Section 17, the notification under Sec. 4 is a sine qua non. In some cases the Government may not follow up the notification under sub-section (1) by further proceedings specially where it finds that the land was unsuited for the purpose for which it is required. But the issue of a notification under sub-section (1) of Section 4 is a condition precedent to the exercise of any further powers under the Act and in our opinion a notification which does not comply with the essential requirement of that provision of law must be held to be bad. 9. Section 4 (1) does not require that the identity of the lands which may ultimately be acquired should be specified but it enjoins upon the Government the duty to specify the locality in which the land is needed. In the instant cases the notifications suffer from a very serious defect in that the locality where the lands were needed was not specified. The notification merely showed that lands mentioned in the schedule were needed. The schedule in its turn though it contained the heading District, Pargana, Mauza and approximate area, gave no particulars of the same and all that was mentioned by way of a note was that the plan of the land might be inspected in the office of the Collector of Rampur. As no details were given, the only indication about the locality of the lands was possibly the District of Rampur inasmuch as the plan of the land was to be found in the office of the Collector of the same district. Certainly the Act did not intend that all the persons owning land in a district should rush to the Collectors office to find out whether his lands were covered by the notification. 10. It was urged before us that the notification was in terms of the section and that the petitioners could not complain inasmuch as the defect was remedied by the notification under S. 6 which was issued within a fortnight after the Section 4 notification. In our view this contention cannot be accepted. Any notification which is the first step towards depriving a man of his property must be strictly construed and Courts ought not to tolerate any lapse on the part of the acquiring authority in the issue of such notification if it be of a serious nature. In the case of Babu Barkya Thakur, (1961) 1 SCR128 = (AIR 1960 SC 1203 ) (supra) it was pointed out by this Court that"The proceedings begin with a Government notification under Section 4 that land in any locality is needed or is likely to be needed for any public purpose".It is well known that a person interested in the land which is affected by any notification under Sec. 4 (1) may immediately object to it and take proceedings in Court against it. In Smt. Somavanti v. State of Punjab, (1963) 2 SCR 774 = (AIR 1963 SC 151 ), one of the main questions before this Court was whether a notification under Section 4 (1) and one under Section 6 (1) could be issued simultaneously. Although the Court took the view that where Section 5-A was not in the way there was no irregularity in publishing the notifications on the same day, yet it observed that :"notification under sub-section (1) of Section 4 is a condition precedent to the making of a notification under sub-section (1) of Section 6".In our view the defect in a notification under Section 4 (1) cannot be cured by giving full particulars in the notification under Section 6 (l).In this case it is apparent that even before the issue of the first notification Government had made up its mind to acquire the lands of the petitioners inasmuch as there was no enquiry in between the two notifications and no valid reason has been put forward to explain why the details specified in the notification under Section 6 (1) could not be given in the one under Section 4 (1).The fact that the petitioners did not go to Court immediately after the publication of the first notification is not a matter of any moment. The defects were not cured and cannot be glossed over by reason of the fact that the petitioners went to Court after the issue of the notification under Section 6 (1). 11. Moreover if it was the intention of the Legislature that in cases of urgency a notification under Sec. 4 (1) was not necessary, a suitable provision would have been made in Section 17 for that purpose. The provisions of that section show that even in cases of extreme urgency like the maintenance of railway traffic by reason of any sudden change in the channel of any navigable river or other unforeseen emergency, the Legislature only thought it fit to bypass the provisions of Section 5-A but not those of Section 4, sub-section (1). 12. In this view, we did not think It necessary to hear Mr. Gupte on the other points. | 1[ds]8. It becomes clear from a perusal of the said sections of the Act that the process of acquisition must start with a notification under Section 4. Even in extremely urgent cases like those mentioned in(2) of Section 17, the notification under Sec. 4 is a sine qua non. In some cases the Government may not follow up the notification under(1) by further proceedings specially where it finds that the land was unsuited for the purpose for which it is required. But the issue of a notification under(1) of Section 4 is a condition precedent to the exercise of any further powers under the Act and in our opinion a notification which does not comply with the essential requirement of that provision of law must be held to be bad.Section 4 (1) does not require that the identity of the lands which may ultimately be acquired should be specified but it enjoins upon the Government the duty to specify the locality in which the land is needed. In the instant cases the notifications suffer from a very serious defect in that the locality where the lands were needed was not specified. The notification merely showed that lands mentioned in the schedule were needed. The schedule in its turn though it contained the heading District, Pargana, Mauza and approximate area, gave no particulars of the same and all that was mentioned by way of a note was that the plan of the land might be inspected in the office of the Collector of Rampur. As no details were given, the only indication about the locality of the lands was possibly the District of Rampur inasmuch as the plan of the land was to be found in the office of the Collector of the same district. Certainly the Act did not intend that all the persons owning land in a district should rush to the Collectors office to find out whether his lands were covered by the notification.t was urged before us that the notification was in terms of the section and that the petitioners could not complain inasmuch as the defect was remedied by the notification under S. 6 which was issued within a fortnight after the Section 4 notification.In our view this contention cannot be accepted. Any notification which is the first step towards depriving a man of his property must be strictly construed and Courts ought not to tolerate any lapse on the part of the acquiring authority in the issue of such notification if it be of a seriousour view the defect in a notification under Section 4 (1) cannot be cured by giving full particulars in the notification under Section 6 (l).In this case it is apparent that even before the issue of the first notification Government had made up its mind to acquire the lands of the petitioners inasmuch as there was no enquiry in between the two notifications and no valid reason has been put forward to explain why the details specified in the notification under Section 6 (1) could not be given in the one under Section 4 (1).The fact that the petitioners did not go to Court immediately after the publication of the first notification is not a matter of any moment. The defects were not cured and cannot be glossed over by reason of the fact that the petitioners went to Court after the issue of the notification under Section 6 (1).Moreover if it was the intention of the Legislature that in cases of urgency a notification under Sec. 4 (1) was not necessary, a suitable provision would have been made in Section 17 for that purpose. The provisions of that section show that even in cases of extreme urgency like the maintenance of railway traffic by reason of any sudden change in the channel of any navigable river or other unforeseen emergency, the Legislature only thought it fit to bypass the provisions of Sectionbut not those of Section 4,. In this view, we did not think It necessary to hear Mr. Gupte on the other points. | 1 | 2,457 | 733 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
enter upon and take possession of the land if the same be needed owing to any sudden change in the channel of any navigable river or other unforeseen emergency it becomes necessary for any Railway administration to acquire the immediate possession of any land or for incidental purposes. Sub-section (4) of the section provides :"In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land al any time after the publication of the notification under Sec. 4, sub-section (1)."8. It becomes clear from a perusal of the said sections of the Act that the process of acquisition must start with a notification under Section 4. Even in extremely urgent cases like those mentioned in sub-section (2) of Section 17, the notification under Sec. 4 is a sine qua non. In some cases the Government may not follow up the notification under sub-section (1) by further proceedings specially where it finds that the land was unsuited for the purpose for which it is required. But the issue of a notification under sub-section (1) of Section 4 is a condition precedent to the exercise of any further powers under the Act and in our opinion a notification which does not comply with the essential requirement of that provision of law must be held to be bad. 9. Section 4 (1) does not require that the identity of the lands which may ultimately be acquired should be specified but it enjoins upon the Government the duty to specify the locality in which the land is needed. In the instant cases the notifications suffer from a very serious defect in that the locality where the lands were needed was not specified. The notification merely showed that lands mentioned in the schedule were needed. The schedule in its turn though it contained the heading District, Pargana, Mauza and approximate area, gave no particulars of the same and all that was mentioned by way of a note was that the plan of the land might be inspected in the office of the Collector of Rampur. As no details were given, the only indication about the locality of the lands was possibly the District of Rampur inasmuch as the plan of the land was to be found in the office of the Collector of the same district. Certainly the Act did not intend that all the persons owning land in a district should rush to the Collectors office to find out whether his lands were covered by the notification. 10. It was urged before us that the notification was in terms of the section and that the petitioners could not complain inasmuch as the defect was remedied by the notification under S. 6 which was issued within a fortnight after the Section 4 notification. In our view this contention cannot be accepted. Any notification which is the first step towards depriving a man of his property must be strictly construed and Courts ought not to tolerate any lapse on the part of the acquiring authority in the issue of such notification if it be of a serious nature. In the case of Babu Barkya Thakur, (1961) 1 SCR128 = (AIR 1960 SC 1203 ) (supra) it was pointed out by this Court that"The proceedings begin with a Government notification under Section 4 that land in any locality is needed or is likely to be needed for any public purpose".It is well known that a person interested in the land which is affected by any notification under Sec. 4 (1) may immediately object to it and take proceedings in Court against it. In Smt. Somavanti v. State of Punjab, (1963) 2 SCR 774 = (AIR 1963 SC 151 ), one of the main questions before this Court was whether a notification under Section 4 (1) and one under Section 6 (1) could be issued simultaneously. Although the Court took the view that where Section 5-A was not in the way there was no irregularity in publishing the notifications on the same day, yet it observed that :"notification under sub-section (1) of Section 4 is a condition precedent to the making of a notification under sub-section (1) of Section 6".In our view the defect in a notification under Section 4 (1) cannot be cured by giving full particulars in the notification under Section 6 (l).In this case it is apparent that even before the issue of the first notification Government had made up its mind to acquire the lands of the petitioners inasmuch as there was no enquiry in between the two notifications and no valid reason has been put forward to explain why the details specified in the notification under Section 6 (1) could not be given in the one under Section 4 (1).The fact that the petitioners did not go to Court immediately after the publication of the first notification is not a matter of any moment. The defects were not cured and cannot be glossed over by reason of the fact that the petitioners went to Court after the issue of the notification under Section 6 (1). 11. Moreover if it was the intention of the Legislature that in cases of urgency a notification under Sec. 4 (1) was not necessary, a suitable provision would have been made in Section 17 for that purpose. The provisions of that section show that even in cases of extreme urgency like the maintenance of railway traffic by reason of any sudden change in the channel of any navigable river or other unforeseen emergency, the Legislature only thought it fit to bypass the provisions of Section 5-A but not those of Section 4, sub-section (1). 12. In this view, we did not think It necessary to hear Mr. Gupte on the other points.
### Response:
1
### Explanation:
8. It becomes clear from a perusal of the said sections of the Act that the process of acquisition must start with a notification under Section 4. Even in extremely urgent cases like those mentioned in(2) of Section 17, the notification under Sec. 4 is a sine qua non. In some cases the Government may not follow up the notification under(1) by further proceedings specially where it finds that the land was unsuited for the purpose for which it is required. But the issue of a notification under(1) of Section 4 is a condition precedent to the exercise of any further powers under the Act and in our opinion a notification which does not comply with the essential requirement of that provision of law must be held to be bad.Section 4 (1) does not require that the identity of the lands which may ultimately be acquired should be specified but it enjoins upon the Government the duty to specify the locality in which the land is needed. In the instant cases the notifications suffer from a very serious defect in that the locality where the lands were needed was not specified. The notification merely showed that lands mentioned in the schedule were needed. The schedule in its turn though it contained the heading District, Pargana, Mauza and approximate area, gave no particulars of the same and all that was mentioned by way of a note was that the plan of the land might be inspected in the office of the Collector of Rampur. As no details were given, the only indication about the locality of the lands was possibly the District of Rampur inasmuch as the plan of the land was to be found in the office of the Collector of the same district. Certainly the Act did not intend that all the persons owning land in a district should rush to the Collectors office to find out whether his lands were covered by the notification.t was urged before us that the notification was in terms of the section and that the petitioners could not complain inasmuch as the defect was remedied by the notification under S. 6 which was issued within a fortnight after the Section 4 notification.In our view this contention cannot be accepted. Any notification which is the first step towards depriving a man of his property must be strictly construed and Courts ought not to tolerate any lapse on the part of the acquiring authority in the issue of such notification if it be of a seriousour view the defect in a notification under Section 4 (1) cannot be cured by giving full particulars in the notification under Section 6 (l).In this case it is apparent that even before the issue of the first notification Government had made up its mind to acquire the lands of the petitioners inasmuch as there was no enquiry in between the two notifications and no valid reason has been put forward to explain why the details specified in the notification under Section 6 (1) could not be given in the one under Section 4 (1).The fact that the petitioners did not go to Court immediately after the publication of the first notification is not a matter of any moment. The defects were not cured and cannot be glossed over by reason of the fact that the petitioners went to Court after the issue of the notification under Section 6 (1).Moreover if it was the intention of the Legislature that in cases of urgency a notification under Sec. 4 (1) was not necessary, a suitable provision would have been made in Section 17 for that purpose. The provisions of that section show that even in cases of extreme urgency like the maintenance of railway traffic by reason of any sudden change in the channel of any navigable river or other unforeseen emergency, the Legislature only thought it fit to bypass the provisions of Sectionbut not those of Section 4,. In this view, we did not think It necessary to hear Mr. Gupte on the other points.
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Uttarakhand Transport Corporation (Earlier known as U.P.S.R.T.C.) & Others Vs. Sukhveer Singh | of the show cause notice proposing penalty, we find no reason to hold that the Respondent was prejudiced by supply of the inquiry officers report along with the show cause notice. This is not a case where the delinquent was handicapped due to the inquiry officers report not being furnished to him at all. In Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra) this Court, while considering the effect on the order of punishment when the report of the inquiry officer was not furnished to the employee and the relief to which the delinquent employee is entitled, held as under:"[v] ........When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."6. The question of the relief to be granted in cases where the report of the inquiry officer was not supplied to the delinquent employee came up for consideration of this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja, 2008(4) S.C.T. 103 : (2008) 9 SCC 31 in which it was held as follows:"21. From the ratio laid down in B. Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officers report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."After a detailed examination of the law on the subject, this Court concluded as follows:"44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show "prejudice". Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down."7. It is clear from the above that mere non-supply of the inquiry report does not automatically warrant re-instatement of the delinquent employee. It is incumbent upon on the delinquent employee to plead and prove that he suffered a serious prejudice due to the non-supply of the inquiry report. We have examined the writ petition filed by the Respondent and we find no pleading regarding any prejudice caused to the Respondent by the non-supply of the inquiry report prior to the issuance of the show cause notice. The Respondent had ample opportunity to submit his version after perusing the report of the inquiry officer. The Respondent utilised the opportunity of placing his response to the inquiry report before the disciplinary authority. The High Court committed an error in allowing the writ petition filed by the Respondent without examining whether any prejudice was caused to the delinquent employee by the supply of the inquiry officers report along with the show cause notice. We are satisfied that there was no prejudice caused to the respondent by the supply of the report of the inquiry officer along with the show cause notice. Hence, no useful purpose will be served by a remand to the court below to examine the point of prejudice.8. The Respondent contended that the punishment of dismissal is disproportionate to the delinquency. It is submitted that he was working as a driver and the irregularity in issuance of tickets was committed by the conductor. We are in agreement with the findings of the inquiry officer which were accepted by the disciplinary authority and approved by the appellate authority and the labour court that the Respondent had committed the misconduct in collusion with the conductor. It is no more res integra that acts of corruption/misappropriation cannot be condoned, even in cases where the amount involved is meagre. (See - U.P.SRTC v. Suresh Chand Sharma, 2010(3) S.C.T. 197 : (2010) 6 SCC 555 at Para 21-23). | 1[ds]5. The award of the labour court was set aside by the High Court on the sole ground thatof the inquiry report prior to the show cause notice vitiated the disciplinary proceedings. The High Court, in our opinion, committed an error in its interpretation of the judgment in Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra). It is no doubt true that this Court in the said judgment held that a delinquent employee has a right to receive the report of the inquiry officer before the disciplinary authority takes a decision regarding his guilt or innocence. Denial of a reasonable opportunity to the employee by not furnishing the inquiry report before such decision on the charges was found to be in violation of principles of natural justice. In the instant case, the disciplinary authority communicated the report of the inquiry officer to the Respondent along with the show cause notice. There is no dispute that the Respondent submitted his reply to the show cause notice after receiving the report of the inquiry officer. On considering the explanation submitted by the Respondent, the disciplinary authority passed an order of dismissal. Though, it was necessary for the Appellants to have supplied the report of the inquiry officer before issuance of the show cause notice proposing penalty, we find no reason to hold that the Respondent was prejudiced by supply of the inquiry officers report along with the show cause notice.It is clear from the above that mereof the inquiry report does not automatically warrantreinstatement of thedelinquent employee. It is incumbent upon on the delinquent employee to plead and prove that he suffered a serious prejudice due to theof the inquiry report. We have examined the writ petition filed by the Respondent and we find no pleading regarding any prejudice caused to the Respondent by theof the inquiry report prior to the issuance of the show cause notice. The Respondent had ample opportunity to submit his version after perusing the report of the inquiry officer. The Respondent utilised the opportunity of placing his response to the inquiry report before the disciplinary authority. The High Court committed an error in allowing the writ petition filed by the Respondent without examining whether any prejudice was caused to the delinquent employee by the supply of the inquiry officers report along with the show cause notice. We are satisfied that there was no prejudice caused to the respondent by the supply of the report of the inquiry officer along with the show cause notice. Hence, no useful purpose will be served by a remand to the court below to examine the point ofare in agreement with the findings of the inquiry officer which were accepted by the disciplinary authority and approved by the appellate authority and the labour court that the Respondent had committed the misconduct in collusion with the conductor. It is no more res integra that acts of corruption/misappropriation cannot be condoned, even in cases where the amount involved is meagre. | 1 | 2,089 | 534 | ### Instruction:
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of the show cause notice proposing penalty, we find no reason to hold that the Respondent was prejudiced by supply of the inquiry officers report along with the show cause notice. This is not a case where the delinquent was handicapped due to the inquiry officers report not being furnished to him at all. In Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra) this Court, while considering the effect on the order of punishment when the report of the inquiry officer was not furnished to the employee and the relief to which the delinquent employee is entitled, held as under:"[v] ........When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."6. The question of the relief to be granted in cases where the report of the inquiry officer was not supplied to the delinquent employee came up for consideration of this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja, 2008(4) S.C.T. 103 : (2008) 9 SCC 31 in which it was held as follows:"21. From the ratio laid down in B. Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officers report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."After a detailed examination of the law on the subject, this Court concluded as follows:"44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show "prejudice". Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down."7. It is clear from the above that mere non-supply of the inquiry report does not automatically warrant re-instatement of the delinquent employee. It is incumbent upon on the delinquent employee to plead and prove that he suffered a serious prejudice due to the non-supply of the inquiry report. We have examined the writ petition filed by the Respondent and we find no pleading regarding any prejudice caused to the Respondent by the non-supply of the inquiry report prior to the issuance of the show cause notice. The Respondent had ample opportunity to submit his version after perusing the report of the inquiry officer. The Respondent utilised the opportunity of placing his response to the inquiry report before the disciplinary authority. The High Court committed an error in allowing the writ petition filed by the Respondent without examining whether any prejudice was caused to the delinquent employee by the supply of the inquiry officers report along with the show cause notice. We are satisfied that there was no prejudice caused to the respondent by the supply of the report of the inquiry officer along with the show cause notice. Hence, no useful purpose will be served by a remand to the court below to examine the point of prejudice.8. The Respondent contended that the punishment of dismissal is disproportionate to the delinquency. It is submitted that he was working as a driver and the irregularity in issuance of tickets was committed by the conductor. We are in agreement with the findings of the inquiry officer which were accepted by the disciplinary authority and approved by the appellate authority and the labour court that the Respondent had committed the misconduct in collusion with the conductor. It is no more res integra that acts of corruption/misappropriation cannot be condoned, even in cases where the amount involved is meagre. (See - U.P.SRTC v. Suresh Chand Sharma, 2010(3) S.C.T. 197 : (2010) 6 SCC 555 at Para 21-23).
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5. The award of the labour court was set aside by the High Court on the sole ground thatof the inquiry report prior to the show cause notice vitiated the disciplinary proceedings. The High Court, in our opinion, committed an error in its interpretation of the judgment in Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra). It is no doubt true that this Court in the said judgment held that a delinquent employee has a right to receive the report of the inquiry officer before the disciplinary authority takes a decision regarding his guilt or innocence. Denial of a reasonable opportunity to the employee by not furnishing the inquiry report before such decision on the charges was found to be in violation of principles of natural justice. In the instant case, the disciplinary authority communicated the report of the inquiry officer to the Respondent along with the show cause notice. There is no dispute that the Respondent submitted his reply to the show cause notice after receiving the report of the inquiry officer. On considering the explanation submitted by the Respondent, the disciplinary authority passed an order of dismissal. Though, it was necessary for the Appellants to have supplied the report of the inquiry officer before issuance of the show cause notice proposing penalty, we find no reason to hold that the Respondent was prejudiced by supply of the inquiry officers report along with the show cause notice.It is clear from the above that mereof the inquiry report does not automatically warrantreinstatement of thedelinquent employee. It is incumbent upon on the delinquent employee to plead and prove that he suffered a serious prejudice due to theof the inquiry report. We have examined the writ petition filed by the Respondent and we find no pleading regarding any prejudice caused to the Respondent by theof the inquiry report prior to the issuance of the show cause notice. The Respondent had ample opportunity to submit his version after perusing the report of the inquiry officer. The Respondent utilised the opportunity of placing his response to the inquiry report before the disciplinary authority. The High Court committed an error in allowing the writ petition filed by the Respondent without examining whether any prejudice was caused to the delinquent employee by the supply of the inquiry officers report along with the show cause notice. We are satisfied that there was no prejudice caused to the respondent by the supply of the report of the inquiry officer along with the show cause notice. Hence, no useful purpose will be served by a remand to the court below to examine the point ofare in agreement with the findings of the inquiry officer which were accepted by the disciplinary authority and approved by the appellate authority and the labour court that the Respondent had committed the misconduct in collusion with the conductor. It is no more res integra that acts of corruption/misappropriation cannot be condoned, even in cases where the amount involved is meagre.
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Balkishandas & 12 Others Vs. State Bank Of Hyderabad And Anr | on or before that date from a debtor or in respect of which any proceedings were pending in a court or before the Board would be the subject-matter of settlement by the Board". In view of this legal position, on behalf of the appellant it is urged that the mortgage executed by the appellants did not create any new debt but merely secured the payment of prior debts which was the balance due to the Bank on the 3 accounts as on the date of the mortgage which debts were pending debts within the meaning of S. 25 (1). On this basis, it is contended that as no application was made under S. 11 in respect of the prior debts, the debts became extinguished and accordingly the mortgage deed lacked consideration to make it enforceable. Apart from the fact that both the courts on the evidence and on an interpretation of the mortgage deed, held that the mortgage transaction was in respect of a fresh loan advanced to the appellants under that deed, no plea that the debt was not supported by consideration or that the earlier debts had been extinguished was either raised before the trial court or before the appellate court. The learned Advocate, however, referred us to prayer in para 9 of the written statement in which a plea was taken that the suit is not maintainable and that "the plaintiff ought to have submitted its claim before the Debts Settlement Board". This plea is general in character and does not indicate that the suit is liable to be dismissed as the mortgage is unsupported by consideration. There was also neither an issue in the trial court nor has any ground been taken in the Memo of Appeal though as many as 75 grounds were urged against the judgment of the trial court. We cannot, therefore, permit the appellant to raise any contention based on the mortgage being unenforceable for want of consideration for the first time in this court. 5. A perusal of the terms of the mortgage deed clearly justifies the conclusions that the loan of Rupees 5,00,000/- was a fresh debt created by the mortgage deed. There is unimpeachable evidence to show, and this has been accepted by both the courts that all the three prior debts were paid from out of Rs.5,00,000/- cash credit loan granted to the appellants under the mortgage deed and the 13 bills of exchange, the time for payment of which had not fallen due and some of which were executed by parties other than the appellants, were endorsed in favour of the appellants and returned to them as a conseqeunce of the discharge of the debts due on the three prior accounts. 6. The mortgage deed states that the properties detailed in schedule annexed thereto were being mortgaged without possession as better security for the repayment of the sum of Rs.5,00,000/- under the deed together with interest accruing in future and all other sums thereby secured. Clause I of the deed states that the mortgagor shall repay the said sum of Rs.5,00,000/- and all other sums secured thereunder within a period of 5 years from the date, in the manner and subject to the conditions detailed thereafter, that the mortgagors shall pay interest on the said sum of Rs.5,00,000 or such other sum that may remain due from them to the mortgagees from time to time at the rate of six per cent per annum till the whole amount is fully repaid; that the mortgagors shall pay the interest accruing due every three months without default; that the principal sum of not less than Rupees 1,00,000/- was to be paid per year by the end of each year following; and that the payments towards the principal shall not be less than Rupees 5,000/- at a time per month and the balance to make up Rupees 1,00,000/- per annum payable shall be paid before the expiry of each year following. There are other terms to which it is not necessary to refer except the last one by which it is agreed that "if the mortgagors commit breach of any of the conditions and convenants and the mortgage money becomes payable either by reason of default or any other cause whatsoever and the mortgagors fail to pay the amount due on demand, the mortgagee will be entitled to sue and bring to sale the said properties hereby mortgaged and if the sale proceeds are not sufficient to satisfy the mortgage decree the mortgagors will pay the said balance personaly and from their other properties both movable and immovable". From the terms of this mortgage it is evident that the debt of Rupees 5,00,000/- is a fresh debt created by and secured thereunder with interest that may become due from the date of the mortgage and that there is, therefore, no question of the mortgage deed having been executed as a settlement of prior debts so as to attract the provisions of Sections 11 and 25 of the Act. In this view, the Civil Court had jurisdiction and the decree granted by the trial Court and confirmed by the appellate Court does not suffer from any infirmity. The appellants have asked for a direction to allow them to pay the decretal amount by instalments but we do not think that there is any justification for granting this prayer. The respondent, however, is prepared to give them time for payment provided half the amount is paid within a certain period and the balance thereof thereafter so that the entire decretal amount is payable within a year from the date of this judgment. We accordingly direct the appellants to pay within four months from the date of the judgment half the decretal amount with interest due thereon and the balance thereof together with further interest within 8 months thereafter. If half the decretal amount is not paid within four months as directed, the first respondent will be free to execute the entire decree. | 0[ds]4. In this appeal on the reasoning of the Court in Mukundchands case (1964) 6 SCR 903 = (AIR 1964 SC 1633 ) the provisions of sec. 3 exempting Scheduled Banks from the application of the provisions of the Act equally offend Article 14 as was section 2 (e) of the Rajasthan Act which was analogous so that the 1st respondents debts to a Jagirdar are liable to be challenged under any of the provisions of the Act like those of any other creditor to whom section 3 was not made applicable. Before dealing with the contentions raised before us, it is necessary to state that as a consequence of the abolition of Jagirs by the Hyderabad Abolition of Jagirs Regulation). 1358 Fasli (1949 A. D.) and the Hyderabad Jagirs (Communication Regulation) 1359 F. (1950 A. D.) passed on 25-1-1950, the resources of the Jagirdars were greatly affected and as a consequence the creditors of those Jagirdars were also faced with a difficult situation which affected their prospects of recovering the loans. It, therefore, became necessary to enact legislation to provide for this contingency. It was in this background that the Act was passed which incorporated the provisions analogous to the Bombay Agricultural Debtors Relief Act 1947. Under the scheme of the Act a Debt Settlement Board was created and the creditors who had claims against the erstwhile Jagirdars were required under section 11 of make application within the notified date, which as we have earlier stated, was 30-6-53, for settlement of their debts. This court had in another case between the same parties-Jt. Family of Mukund Das Raja Bhagwan Dass and Sons v. State Bank of Hyderabad, (1971) 2 SCR 136 = (AIR 1971 SC 449 ) to which one of us was a party (Hegde J.), considered the scope and ambit of the Act and it is, therefore unnecessary for us again to traverse the same ground. In that case a similar question as that which falls for determination in this case was considered, namely, what are the conditions for the applicability of section 25 of the Act which provide for transfer of pending suits, appeals, applications and proceedings to the Board and deprive the civil courts of jurisdiction in respect of debts which were the subject-matter of these proceedings. In that case the decision of the Full Bench of the Andhra Pradesh High Court to which reference has been made earlier, was also considered and its conclusion that the expression pending in sec. 25 relates to proceedings which were pending on the notified date and could not take in any proceedings which came to be instituted after such date was approved. After examining the scheme and the several relevant provisions of the Act it was held that the suit or proceedings must be pending on the notified date and could not take in any proceedings which came to be instituted after such date, and that they must be in respect of a debt with regard to which a Jagirdar or a creditor could make an application to the Board on or before the notified date.Thus, only those debts which were due on or before the notified date from a debtor or in respect of which any proceedings were pending in any Court or before the Board could be the subject-matter of the settlement by the Board.In that case the suit was filed by the respondent Bank on July 1956 against the appellant for the recovery of Rs. 40,000/- on account of cash credit account opened by the appellants with the respondent. The suit was decreed and in 1959 the Bank filed an execution petition for executing the decree. It was urged that the execution petition should be transferred to the Jagirdars Debt Settlement Board under section 25 of the Act. While negativing this contention, Grover J. observed at page 142:"In our judgment the High Court came to the correct conclusion that the expression pending in S. 25 (1) must relate to proceedings which were pending on the notified date and could not take in any proceedings which came to be instituted after such date. The other condition for the applicability of S. 25 was that the suit or other proceedings must be in respect of a debt with regard to which a Jagirdar or the creditor could make an application to the Board on or before the date which the Government had notified for settlement of debts due by the Jagirdar. A close examination of S. 22 puts the matter beyond controversy. If no application had been made under S. 11 within the period specified therein or for recording a settlement made under S. 15 every debt due by the debtor was to stand extinguished. In a case of the present kind a debt would have stood extinguished if no application had been made under S. 11 within the specified period. Thus the material date would be the one notified by the Government under S. 11 and only those debts which were due on or before that date from a debtor or in respect of which any proceedings were pending in a court or before the Board would be the subject-matter of settlement by the Board"In view of this legal position, on behalf of the appellant it is urged that the mortgage executed by the appellants did not create any new debt but merely secured the payment of prior debts which was the balance due to the Bank on the 3 accounts as on the date of the mortgage which debts were pending debts within the meaning of S. 25 (1). On this basis, it is contended that as no application was made under S. 11 in respect of the prior debts, the debts became extinguished and accordingly the mortgage deed lacked consideration to make it enforceable. Apart from the fact that both the courts on the evidence and on an interpretation of the mortgage deed, held that the mortgage transaction was in respect of a fresh loan advanced to the appellants under that deed, no plea that the debt was not supported by consideration or that the earlier debts had been extinguished was either raised before the trial court or before the appellate court. The learned Advocate, however, referred us to prayer in para 9 of the written statement in which a plea was taken that the suit is not maintainable and that "the plaintiff ought to have submitted its claim before the Debts Settlement Board". This plea is general in character and does not indicate that the suit is liable to be dismissed as the mortgage is unsupported by consideration. There was also neither an issue in the trial court nor has any ground been taken in the Memo of Appeal though as many as 75 grounds were urged against the judgment of the trial court. We cannot, therefore, permit the appellant to raise any contention based on the mortgage being unenforceable for want of consideration for the first time in this court5. A perusal of the terms of the mortgage deed clearly justifies the conclusions that the loan of Rupees 5,00,000/- was a fresh debt created by the mortgage deed. There is unimpeachable evidence to show, and this has been accepted by both the courts that all the three prior debts were paid from out of Rs.5,00,000/- cash credit loan granted to the appellants under the mortgage deed and the 13 bills of exchange, the time for payment of which had not fallen due and some of which were executed by parties other than the appellants, were endorsed in favour of the appellants and returned to them as a conseqeunce of the discharge of the debts due on the three prior accounts6. The mortgage deed states that the properties detailed in schedule annexed thereto were being mortgaged without possession as better security for the repayment of the sum of Rs.5,00,000/- under the deed together with interest accruing in future and all other sums thereby secured. Clause I of the deed states that the mortgagor shall repay the said sum of Rs.5,00,000/- and all other sums secured thereunder within a period of 5 years from the date, in the manner and subject to the conditions detailed thereafter, that the mortgagors shall pay interest on the said sum of Rs.5,00,000 or such other sum that may remain due from them to the mortgagees from time to time at the rate of six per cent per annum till the whole amount is fully repaid; that the mortgagors shall pay the interest accruing due every three months without default; that the principal sum of not less than Rupees 1,00,000/- was to be paid per year by the end of each year following; and that the payments towards the principal shall not be less than Rupees 5,000/- at a time per month and the balance to make up Rupees 1,00,000/- per annum payable shall be paid before the expiry of each year following. There are other terms to which it is not necessary to refer except the last one by which it is agreed that "if the mortgagors commit breach of any of the conditions and convenants and the mortgage money becomes payable either by reason of default or any other cause whatsoever and the mortgagors fail to pay the amount due on demand, the mortgagee will be entitled to sue and bring to sale the said properties hereby mortgaged and if the sale proceeds are not sufficient to satisfy the mortgage decree the mortgagors will pay the said balance personaly and from their other properties both movable and immovable". From the terms of this mortgage it is evident that the debt of Rupees 5,00,000/- is a fresh debt created by and secured thereunder with interest that may become due from the date of the mortgage and that there is, therefore, no question of the mortgage deed having been executed as a settlement of prior debts so as to attract the provisions of Sections 11 and 25 of the Act. In this view, the Civil Court had jurisdiction and the decree granted by the trial Court and confirmed by the appellate Court does not suffer from any infirmity. The appellants have asked for a direction to allow them to pay the decretal amount by instalments but we do not think that there is any justification for granting this prayer. The respondent, however, is prepared to give them time for payment provided half the amount is paid within a certain period and the balance thereof thereafter so that the entire decretal amount is payable within a year from the date of this judgment. We accordingly direct the appellants to pay within four months from the date of the judgment half the decretal amount with interest due thereon and the balance thereof together with further interest within 8 months thereafter. If half the decretal amount is not paid within four months as directed, the first respondent will be free to execute the entire decree. | 0 | 3,247 | 1,951 | ### Instruction:
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on or before that date from a debtor or in respect of which any proceedings were pending in a court or before the Board would be the subject-matter of settlement by the Board". In view of this legal position, on behalf of the appellant it is urged that the mortgage executed by the appellants did not create any new debt but merely secured the payment of prior debts which was the balance due to the Bank on the 3 accounts as on the date of the mortgage which debts were pending debts within the meaning of S. 25 (1). On this basis, it is contended that as no application was made under S. 11 in respect of the prior debts, the debts became extinguished and accordingly the mortgage deed lacked consideration to make it enforceable. Apart from the fact that both the courts on the evidence and on an interpretation of the mortgage deed, held that the mortgage transaction was in respect of a fresh loan advanced to the appellants under that deed, no plea that the debt was not supported by consideration or that the earlier debts had been extinguished was either raised before the trial court or before the appellate court. The learned Advocate, however, referred us to prayer in para 9 of the written statement in which a plea was taken that the suit is not maintainable and that "the plaintiff ought to have submitted its claim before the Debts Settlement Board". This plea is general in character and does not indicate that the suit is liable to be dismissed as the mortgage is unsupported by consideration. There was also neither an issue in the trial court nor has any ground been taken in the Memo of Appeal though as many as 75 grounds were urged against the judgment of the trial court. We cannot, therefore, permit the appellant to raise any contention based on the mortgage being unenforceable for want of consideration for the first time in this court. 5. A perusal of the terms of the mortgage deed clearly justifies the conclusions that the loan of Rupees 5,00,000/- was a fresh debt created by the mortgage deed. There is unimpeachable evidence to show, and this has been accepted by both the courts that all the three prior debts were paid from out of Rs.5,00,000/- cash credit loan granted to the appellants under the mortgage deed and the 13 bills of exchange, the time for payment of which had not fallen due and some of which were executed by parties other than the appellants, were endorsed in favour of the appellants and returned to them as a conseqeunce of the discharge of the debts due on the three prior accounts. 6. The mortgage deed states that the properties detailed in schedule annexed thereto were being mortgaged without possession as better security for the repayment of the sum of Rs.5,00,000/- under the deed together with interest accruing in future and all other sums thereby secured. Clause I of the deed states that the mortgagor shall repay the said sum of Rs.5,00,000/- and all other sums secured thereunder within a period of 5 years from the date, in the manner and subject to the conditions detailed thereafter, that the mortgagors shall pay interest on the said sum of Rs.5,00,000 or such other sum that may remain due from them to the mortgagees from time to time at the rate of six per cent per annum till the whole amount is fully repaid; that the mortgagors shall pay the interest accruing due every three months without default; that the principal sum of not less than Rupees 1,00,000/- was to be paid per year by the end of each year following; and that the payments towards the principal shall not be less than Rupees 5,000/- at a time per month and the balance to make up Rupees 1,00,000/- per annum payable shall be paid before the expiry of each year following. There are other terms to which it is not necessary to refer except the last one by which it is agreed that "if the mortgagors commit breach of any of the conditions and convenants and the mortgage money becomes payable either by reason of default or any other cause whatsoever and the mortgagors fail to pay the amount due on demand, the mortgagee will be entitled to sue and bring to sale the said properties hereby mortgaged and if the sale proceeds are not sufficient to satisfy the mortgage decree the mortgagors will pay the said balance personaly and from their other properties both movable and immovable". From the terms of this mortgage it is evident that the debt of Rupees 5,00,000/- is a fresh debt created by and secured thereunder with interest that may become due from the date of the mortgage and that there is, therefore, no question of the mortgage deed having been executed as a settlement of prior debts so as to attract the provisions of Sections 11 and 25 of the Act. In this view, the Civil Court had jurisdiction and the decree granted by the trial Court and confirmed by the appellate Court does not suffer from any infirmity. The appellants have asked for a direction to allow them to pay the decretal amount by instalments but we do not think that there is any justification for granting this prayer. The respondent, however, is prepared to give them time for payment provided half the amount is paid within a certain period and the balance thereof thereafter so that the entire decretal amount is payable within a year from the date of this judgment. We accordingly direct the appellants to pay within four months from the date of the judgment half the decretal amount with interest due thereon and the balance thereof together with further interest within 8 months thereafter. If half the decretal amount is not paid within four months as directed, the first respondent will be free to execute the entire decree.
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0
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which were due on or before that date from a debtor or in respect of which any proceedings were pending in a court or before the Board would be the subject-matter of settlement by the Board"In view of this legal position, on behalf of the appellant it is urged that the mortgage executed by the appellants did not create any new debt but merely secured the payment of prior debts which was the balance due to the Bank on the 3 accounts as on the date of the mortgage which debts were pending debts within the meaning of S. 25 (1). On this basis, it is contended that as no application was made under S. 11 in respect of the prior debts, the debts became extinguished and accordingly the mortgage deed lacked consideration to make it enforceable. Apart from the fact that both the courts on the evidence and on an interpretation of the mortgage deed, held that the mortgage transaction was in respect of a fresh loan advanced to the appellants under that deed, no plea that the debt was not supported by consideration or that the earlier debts had been extinguished was either raised before the trial court or before the appellate court. The learned Advocate, however, referred us to prayer in para 9 of the written statement in which a plea was taken that the suit is not maintainable and that "the plaintiff ought to have submitted its claim before the Debts Settlement Board". This plea is general in character and does not indicate that the suit is liable to be dismissed as the mortgage is unsupported by consideration. There was also neither an issue in the trial court nor has any ground been taken in the Memo of Appeal though as many as 75 grounds were urged against the judgment of the trial court. We cannot, therefore, permit the appellant to raise any contention based on the mortgage being unenforceable for want of consideration for the first time in this court5. A perusal of the terms of the mortgage deed clearly justifies the conclusions that the loan of Rupees 5,00,000/- was a fresh debt created by the mortgage deed. There is unimpeachable evidence to show, and this has been accepted by both the courts that all the three prior debts were paid from out of Rs.5,00,000/- cash credit loan granted to the appellants under the mortgage deed and the 13 bills of exchange, the time for payment of which had not fallen due and some of which were executed by parties other than the appellants, were endorsed in favour of the appellants and returned to them as a conseqeunce of the discharge of the debts due on the three prior accounts6. The mortgage deed states that the properties detailed in schedule annexed thereto were being mortgaged without possession as better security for the repayment of the sum of Rs.5,00,000/- under the deed together with interest accruing in future and all other sums thereby secured. Clause I of the deed states that the mortgagor shall repay the said sum of Rs.5,00,000/- and all other sums secured thereunder within a period of 5 years from the date, in the manner and subject to the conditions detailed thereafter, that the mortgagors shall pay interest on the said sum of Rs.5,00,000 or such other sum that may remain due from them to the mortgagees from time to time at the rate of six per cent per annum till the whole amount is fully repaid; that the mortgagors shall pay the interest accruing due every three months without default; that the principal sum of not less than Rupees 1,00,000/- was to be paid per year by the end of each year following; and that the payments towards the principal shall not be less than Rupees 5,000/- at a time per month and the balance to make up Rupees 1,00,000/- per annum payable shall be paid before the expiry of each year following. There are other terms to which it is not necessary to refer except the last one by which it is agreed that "if the mortgagors commit breach of any of the conditions and convenants and the mortgage money becomes payable either by reason of default or any other cause whatsoever and the mortgagors fail to pay the amount due on demand, the mortgagee will be entitled to sue and bring to sale the said properties hereby mortgaged and if the sale proceeds are not sufficient to satisfy the mortgage decree the mortgagors will pay the said balance personaly and from their other properties both movable and immovable". From the terms of this mortgage it is evident that the debt of Rupees 5,00,000/- is a fresh debt created by and secured thereunder with interest that may become due from the date of the mortgage and that there is, therefore, no question of the mortgage deed having been executed as a settlement of prior debts so as to attract the provisions of Sections 11 and 25 of the Act. In this view, the Civil Court had jurisdiction and the decree granted by the trial Court and confirmed by the appellate Court does not suffer from any infirmity. The appellants have asked for a direction to allow them to pay the decretal amount by instalments but we do not think that there is any justification for granting this prayer. The respondent, however, is prepared to give them time for payment provided half the amount is paid within a certain period and the balance thereof thereafter so that the entire decretal amount is payable within a year from the date of this judgment. We accordingly direct the appellants to pay within four months from the date of the judgment half the decretal amount with interest due thereon and the balance thereof together with further interest within 8 months thereafter. If half the decretal amount is not paid within four months as directed, the first respondent will be free to execute the entire decree.
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MUNISH KAKKAR Vs. NIDHI KAKKAR | a law degree herself. 13. We have given our deep thought to the matter and to the discussions in the trial court judgment and the High Court judgment. Learned single Judge appears to have brushed aside the allegations of extra marital affairs as also of a child out of the wedlock as part of the wear and tear of marriage and as inflamed passions. The fact, however, remains that the relationship appears to have deteriorated to such an extent that both parties see little good in each other, an aspect supported by the counselors report; though the respondent insists that she wants to stay with the appellant. In our view, this insistence is only to somehow not let a decree of divorce be passed against the respondent. This is only to frustrate the endeavour of the appellant to get a decree of divorce, completely losing sight of the fact that matrimonial relationships require adjustments from both sides, and a willingness to stay together. The mere say of such willingness would not suffice. 14. It is no doubt true that the divorce legislations in India are based on the fault theory, i.e., no party should take advantage of his/her own fault, and that the ground of irretrievable breakdown of marriage, as yet, has not been inserted in the divorce law, despite a debate on this aspect by the Law Commission in two reports. 15. We, however, find that there are various judicial pronouncements where this Court, in exercise of its powers under Article 142 of the Constitution of India, has granted divorce on the ground of irretrievable breakdown of marriage; not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise. There is, thus, recognition of the futility of a completely failed marriage being continued only on paper. 16. We have noticed above that all endeavours have been made to persuade the parties to live together, which have not succeeded. For that, it would not be appropriate to blame one or the other party, but the fact is that nothing remains in this marriage. The counselors report also opines so. The marriage is a dead letter. 17. Much could be said about what the learned single Judge has observed as wear and tear of marriage and inflamed passions, but wisdom requires us to not traverse that same path, as we feel that, on the ground of irretrievable breakdown of marriage, if this is not a fit case to grant divorce, what would be a fit case! 18. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and live his life, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us. 19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar v. R. Shametha,(2019) 9 SCC 409 to which one of us (Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where parties had been living apart for the last twenty-two (22) years and a re-union was found to be impossible. We are conscious of the fact that this Court has also extended caution from time to time on this aspect, apart from noticing that it is only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it. 20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end. 21. The provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do complete justice between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It is with this objective that we find it appropriate to take recourse to this provision in the present case. 22. We are of the view that an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately. | 1[ds]8. We may note here that the trial courts view was predicated on inter alia the continued character assassination by the respondent of the appellant, since she had neither been able to prove any extra-marital affair of the appellant, nor could she prove the factum of forcible termination of pregnancy11. It is relevant to note that at various times there were efforts made to mediate the dispute, which failed. Multiple efforts have been made even by this Court, but to no avail. In a last ditch effort, the parties were referred to a counselor after one of us, with the consent of the parties, had taken the matter in chambers. The counselor/psychologist, however, opined that the separation of sixteen (16) years since 2003 had made both the parties bitter and cynical about the relationship and there was no sign of any affection or bonding on either side. The parties apparently had no history of pleasant time and only feelings of resentment arising from the several court cases. There was also no family support from either side. This would also be apparent, in our view, from the fact that there are stated to be multiple cases filed by both set of family members against the opposite party15. We, however, find that there are various judicial pronouncements where this Court, in exercise of its powers under Article 142 of the Constitution of India, has granted divorce on the ground of irretrievable breakdown of marriage; not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise. There is, thus, recognition of the futility of a completely failed marriage being continued only on paper16. We have noticed above that all endeavours have been made to persuade the parties to live together, which have not succeeded. For that, it would not be appropriate to blame one or the other party, but the fact is that nothing remains in this marriage. The counselors report also opines so. The marriage is a dead letter17. Much could be said about what the learned single Judge has observed as wear and tear of marriage and inflamed passions, but wisdom requires us to not traverse that same path, as we feel that, on the ground of irretrievable breakdown of marriage, if this is not a fit case to grant divorce, what would be a fit case!19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar v. R. Shametha,(2019) 9 SCC 409 to which one of us (Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where parties had been living apart for the last twenty-two (22) years and a re-union was found to be impossible. We are conscious of the fact that this Court has also extended caution from time to time on this aspect, apart from noticing that it is only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end21. The provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do complete justice between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It is with this objective that we find it appropriate to take recourse to this provision in the present case22. We are of the view that an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately18. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and live his life, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us. | 1 | 2,468 | 1,081 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
a law degree herself. 13. We have given our deep thought to the matter and to the discussions in the trial court judgment and the High Court judgment. Learned single Judge appears to have brushed aside the allegations of extra marital affairs as also of a child out of the wedlock as part of the wear and tear of marriage and as inflamed passions. The fact, however, remains that the relationship appears to have deteriorated to such an extent that both parties see little good in each other, an aspect supported by the counselors report; though the respondent insists that she wants to stay with the appellant. In our view, this insistence is only to somehow not let a decree of divorce be passed against the respondent. This is only to frustrate the endeavour of the appellant to get a decree of divorce, completely losing sight of the fact that matrimonial relationships require adjustments from both sides, and a willingness to stay together. The mere say of such willingness would not suffice. 14. It is no doubt true that the divorce legislations in India are based on the fault theory, i.e., no party should take advantage of his/her own fault, and that the ground of irretrievable breakdown of marriage, as yet, has not been inserted in the divorce law, despite a debate on this aspect by the Law Commission in two reports. 15. We, however, find that there are various judicial pronouncements where this Court, in exercise of its powers under Article 142 of the Constitution of India, has granted divorce on the ground of irretrievable breakdown of marriage; not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise. There is, thus, recognition of the futility of a completely failed marriage being continued only on paper. 16. We have noticed above that all endeavours have been made to persuade the parties to live together, which have not succeeded. For that, it would not be appropriate to blame one or the other party, but the fact is that nothing remains in this marriage. The counselors report also opines so. The marriage is a dead letter. 17. Much could be said about what the learned single Judge has observed as wear and tear of marriage and inflamed passions, but wisdom requires us to not traverse that same path, as we feel that, on the ground of irretrievable breakdown of marriage, if this is not a fit case to grant divorce, what would be a fit case! 18. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and live his life, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us. 19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar v. R. Shametha,(2019) 9 SCC 409 to which one of us (Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where parties had been living apart for the last twenty-two (22) years and a re-union was found to be impossible. We are conscious of the fact that this Court has also extended caution from time to time on this aspect, apart from noticing that it is only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it. 20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end. 21. The provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do complete justice between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It is with this objective that we find it appropriate to take recourse to this provision in the present case. 22. We are of the view that an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately.
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8. We may note here that the trial courts view was predicated on inter alia the continued character assassination by the respondent of the appellant, since she had neither been able to prove any extra-marital affair of the appellant, nor could she prove the factum of forcible termination of pregnancy11. It is relevant to note that at various times there were efforts made to mediate the dispute, which failed. Multiple efforts have been made even by this Court, but to no avail. In a last ditch effort, the parties were referred to a counselor after one of us, with the consent of the parties, had taken the matter in chambers. The counselor/psychologist, however, opined that the separation of sixteen (16) years since 2003 had made both the parties bitter and cynical about the relationship and there was no sign of any affection or bonding on either side. The parties apparently had no history of pleasant time and only feelings of resentment arising from the several court cases. There was also no family support from either side. This would also be apparent, in our view, from the fact that there are stated to be multiple cases filed by both set of family members against the opposite party15. We, however, find that there are various judicial pronouncements where this Court, in exercise of its powers under Article 142 of the Constitution of India, has granted divorce on the ground of irretrievable breakdown of marriage; not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise. There is, thus, recognition of the futility of a completely failed marriage being continued only on paper16. We have noticed above that all endeavours have been made to persuade the parties to live together, which have not succeeded. For that, it would not be appropriate to blame one or the other party, but the fact is that nothing remains in this marriage. The counselors report also opines so. The marriage is a dead letter17. Much could be said about what the learned single Judge has observed as wear and tear of marriage and inflamed passions, but wisdom requires us to not traverse that same path, as we feel that, on the ground of irretrievable breakdown of marriage, if this is not a fit case to grant divorce, what would be a fit case!19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar v. R. Shametha,(2019) 9 SCC 409 to which one of us (Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where parties had been living apart for the last twenty-two (22) years and a re-union was found to be impossible. We are conscious of the fact that this Court has also extended caution from time to time on this aspect, apart from noticing that it is only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end21. The provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do complete justice between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It is with this objective that we find it appropriate to take recourse to this provision in the present case22. We are of the view that an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately18. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and live his life, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us.
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Shrimand Padmaraja R. Kadambanda, Dhulia Vs. The Commnr. Of Income Tax, Pune | case ( 1963 (49) ITR 144 : 1967 AIR(SC) 290 : 1964 (2) SCR 847 ) does not seem to be correct in view of what we have pointed out above33. It has already been seen that the marginal heading of Section 15 is "compensation". The fact that under clauses (i), (ii) and (iii) of Section 15(1) the compensation is paid as of right and in cases falling under clause (d) of the proviso, it is a discretionary payment, would not stamp the payment with a character of revenue. As to how a marginal heading has to be construed can be gathered from Chandroji Rao case ( 1970 (2) SCC 23 : 1970 (77) ITR 743 ). It is stated therein that the marginal heading to a section cannot control the interpretation of the words of the Section particularly where the meaning of the section is clear and unambiguous34. For a moment, we are not interpreting the words of the section but we are only holding that even a payment under clause (d) is nothing but a compensation because as the facts disclose the amount of Rs. 10 lakhs out of a trust property in a Bank of Kolhapur was misappropriated35. There is no compulsion on the part of the Government to make the payment nor is the Government obliged to make the payment since it is purely discretionary. A case similar to the one on hand is H. H. Maharani Sri Vijaykuverba Saheb of Morvi ( 1963 (49) ITR 594 (Bom)) head-note of which is extractedA Voluntary payment which is made entirely without consideration and is not tractable to any source which a practical man may regard as a real source of his income but depend entirely on the whim of the donor cannot fall in the category of income The ruler of a native State abdicated in favour of his son in January 1948. From April, 1949, onwards his son paid him a monthly allowance. The allowance was not paid under any custom or usage. The allowance could not be regarded as maintenance allowance, as the assessee possessed a large fortune "Held, that as the payments were commenced long after the ruler had abdicated, they were not made under a legal or contractual obligation. As the allowances were not also made under a custom or usage or as a maintenance allowance, they were not assessable." 36. The position is exactly the same. The payment made by the Government is undoubtedly voluntary. However, it has no origin in what might be called the real source of income. No doubt Section 15(1) proviso clause (d) enables the application to seek payment but that is far from saying that it is a source. Therefore, it cannot afford any foundation for such a source. Further, it is a compassionate payment, for such length of period as the Government may, in its discretion, order 37. Lastly, we may refer to Kamal Behari Lal Singha case ( 1971 (3) SCC 540 : 1971 (82) ITR 460 ) which is pressed into service by the Revenue, to support its contention one has to look at the character of the payment in the hand of the receiver and the source from which the payment is made has no bearing on the question. We will extract the head-note (from ITR) of this ruling "During the accounting period ending April 13, 1950, the assessee, who was a shareholder in a company, received a dividend of Rs. 13, 200 from the company. Out of that amount a sum of Rs. 8, 829 was paid out of capital gains received by the company in the shape of salamis and land acquisition compensation receipt after March 31, 1948. The question was whether that part of the dividend attributable to salamis and compensation for land acquisition was taxable in the hands of the assesseeHeld, that the assessee had a beneficial interest in that sum in the hands of the company. Undoubtedly, the amount received by the company towards salami and compensation of acquisition of its lands was a capital receipt in the hands of the company and when the sum was distributed amongst its shareholders each of the shareholders took a share of the capital assets to which they were beneficially entitled. The receipt of Rs. 8, 829 was a capital receipt in the hands of the assessee. The fact that the sum was distributed as dividend did not change the true nature of the receipt; a receipt was what it was and not what it was calledTrustees of the Will of H. K. Brodie v. IRC ( 1933 (17) Tax(Cases) 432 (KB) appliedHeld also that the part of the dividend received by the assessee attributable to land acquisition compensation received by the company after March 31, 1948, was not receipt of dividend within the meaning of Section 2(6-A) of the Income Tax Act, 1922CIT v. Nalin Behari Lall Singha ( 1969 (2) SCC 310 : 1969 (74) ITR 849 ), followedIt is now well settled that in order to find out whether a receipt is a capital receipt or a revenue receipt one has to see what it is in the hands of the receiver and not its nature in the hands of the payer. In other words the nature of the receipt is determined entirely by its character in the hands of the receiver and the source from which the payment is made has no bearing on the question. Where an amount is paid which, so far as the payer is concerned, is paid wholly or partly out or capital, and the receiver receives it as income on his part, the entire receipt is taxable in the hands of the receiver." 38. This is a case of compensation paid under the Land Acquisition Act. It was held that a compensation as such would be capital receipt in the hands of the receiver and the fact that it was distributed as dividends would not change the true nature of the receipt | 1[ds]Therefore, if these are applied there is no difficulty in holding that the payment received by the assessee, which do not amount to compensation, are nothing but income. Where it is a case of compensation that would be as said down in CIT v. Kamal Behari Lal Singha ( 1973 (3) SCC 540 : 1971 (82) ITRThe direct authority which governs the present case is Raja Rameshwara Rao v. CIT ( 1963 (49) ITR 144 : 1967 AIR(SC) 290 : 1964 (2) SCR 847 ) because that was a case of maintenance allowance. Here, as well, the assessee applied to the Government in order to maintain herself. It is such an allowance which is talked of under clause (d) of Section 15(1) of the Act. Therefore, where she is paid maintenance allowance periodically it cannot be claimed as compensation. It does not matter on what ground or on what basis the grant is made. That is alien to taxation. Therefore, to say that it is paid as compassionate allowance cannot make the position of assessee any better.19. The next authority on which reliance could be placed in S. R. Y. Sivaram Prasad Bahadur ( 1971 (3) SCC 726 , 732 : 1971 (82) ITR 527 , 535) in which also it was held that one must look at the substance of the payment. Therefore, the Judgment of the High Court is correct.20. No doubt, the marginal heading of the section is compensation but that does not control the operation of the section or the interpretation of Sectionhave earlier said that it is not in dispute that the commutation sum was paid as compensation for the loss of the Jagir and was, therefore, capital which was not liable to be taxed. We thus find that the Regulation make a clear distinction between the commutation sum or compensation and the interim maintenance allowances. These allowances were obviously not intended to bethink that if we have regard to the provisions of the Regulation under which they were paid, as we must, there is no doubt that they were of the nature of income. No doubt they were not income of any of the kinds that are commonly found, but are, as Lord Radcliffe said in a case to which we shall later refer, sui generis. We proceed now to discuss why we think they were incomeThese allowances, we notice were treated by Regulations as something other than the compensation for the loss of the Jagir. They were, therefore, not treated as capital as representing compensation for the Jagir. If they were treated as capital for the reason that they were not compensation for the loss of Jagir, we find no ground on which we can say that they were capital. It would follow that they must be income and taxable as such. They were certainly not windfall for a right to them was created by the Abolition Regulation, a right which under Section 21 could be enforced in a civil court. Then we find that these allowances were payable with a regularity and were of a recurring nature, both of which are recognised as characteristic of income : see CIT v. Shaw Wallace and Co. 1932 (59) ILR(Cal) 1343, 1350 : 1932 AIR(PC) 138 : 59 IA 206) Next, we observe that the Regulation advisedly called the payments maintenance allowance, a nomenclature peculiarly suited to payments of the nature of income.Therefore, in this case, the maintenance allowance was qualified by the statute and it was a nomenclature peculiarly suited to payments of the nature ofas we have pointed out just now, maintenance allowance is qualified by statute unlike the present case which is purely a discretionary payment. It is no use contending as also observed by the High Court that after the order is passed an enforceable right arises. On the contrary the question would be whether the statute gives an enforceable right. We think in such of those cases falling under clause (d) of the proviso to Section 15 (1) of the Act, no statutory right is created. This is unlike those cases falling under clauses (i), (ii) and (iii) of sub-section (1) of Section 15. These constitute different clauses as has already been pointed out by us. The fact that the assessee has applied for a grant for maintenance, nor again, the periodicity of payment, would be conclusive as we will demonstrateTherefore, the observation of the privy Council in CIT v. Shaw Wallace & Co. case 1932 (59) ILR(Cal) 1343, 1350 : 1932 AIR(PC) 138 : 59 IA 206) cannot be pressed into service as of general application as is sought to be done by the learned counsel for the Revenue.Thus it is clear that the observation made by this court in Rameshwara Rao case ( 1963 (49) ITR 144 : 1967 AIR(SC) 290 : 1964 (2) SCR 847 ) must be read in the light of the facts of the case. From the ruling in S. R. Y Sivaram Prasad Bahadur ( 1971 (3) SCC 726 , 732 : 1971 (82) ITR 527 , 535) it is clear that what is decisive of the character is the quality of the payment.This was the reason why we said neither the nomenclature nor the periodicity of the payment would be the determinative factors. Regards must be had only to the nature and quality of payment. The High Court took the view that this is not compensation. One thing that is certain is that the assessee lost her right to those allowances. Thereafter, on an application by way of compassion the payment is made. The mere fact, after the order is made it becomes an enforceable right, is neither here nor there. The reliance on Rameshwara Rao case ( 1963 (49) ITR 144 : 1967 AIR(SC) 290 : 1964 (2) SCR 847 ) does not seem to be correct in view of what we have pointed out above33. It has already been seen that the marginal heading of Section 15 is "compensation". The fact that under clauses (i), (ii) and (iii) of Section 15(1) the compensation is paid as of right and in cases falling under clause (d) of the proviso, it is a discretionary payment, would not stamp the payment with a character of revenue. As to how a marginal heading has to be construed can be gathered from Chandroji Rao case ( 1970 (2) SCC 23 : 1970 (77) ITR 743 ). It is stated therein that the marginal heading to a section cannot control the interpretation of the words of the Section particularly where the meaning of the section is clear and unambiguous34. For a moment, we are not interpreting the words of the section but we are only holding that even a payment under clause (d) is nothing but a compensation because as the facts disclose the amount of Rs. 10 lakhs out of a trust property in a Bank of Kolhapur was misappropriated35. There is no compulsion on the part of the Government to make the payment nor is the Government obliged to make the payment since it is purely discretionary.The position is exactly the same. The payment made by the Government is undoubtedly voluntary. However, it has no origin in what might be called the real source of income. No doubt Section 15(1) proviso clause (d) enables the application to seek payment but that is far from saying that it is a source. Therefore, it cannot afford any foundation for such a source. Further, it is a compassionate payment, for such length of period as the Government may, in its discretion,This is a case of compensation paid under the Land Acquisition Act. It was held that a compensation as such would be capital receipt in the hands of the receiver and the fact that it was distributed as dividends would not change the true nature of theA case similar to the one hand is H. H. Maharani Shri Vijaykuverba Saheb of Morvi ( 1963 (49) ITR 594 (Bom)) wherein the High Court held that a voluntary payment without consideration cannot fall in the category of income. The position here is exactly same. There is no compulsion on the part of the Government to give any allowance. It is purely discretionary. It cannot be got over by saying that after the order is passed the assessee gets a right. That has nothing to do in determining the question | 1 | 7,418 | 1,609 | ### Instruction:
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case ( 1963 (49) ITR 144 : 1967 AIR(SC) 290 : 1964 (2) SCR 847 ) does not seem to be correct in view of what we have pointed out above33. It has already been seen that the marginal heading of Section 15 is "compensation". The fact that under clauses (i), (ii) and (iii) of Section 15(1) the compensation is paid as of right and in cases falling under clause (d) of the proviso, it is a discretionary payment, would not stamp the payment with a character of revenue. As to how a marginal heading has to be construed can be gathered from Chandroji Rao case ( 1970 (2) SCC 23 : 1970 (77) ITR 743 ). It is stated therein that the marginal heading to a section cannot control the interpretation of the words of the Section particularly where the meaning of the section is clear and unambiguous34. For a moment, we are not interpreting the words of the section but we are only holding that even a payment under clause (d) is nothing but a compensation because as the facts disclose the amount of Rs. 10 lakhs out of a trust property in a Bank of Kolhapur was misappropriated35. There is no compulsion on the part of the Government to make the payment nor is the Government obliged to make the payment since it is purely discretionary. A case similar to the one on hand is H. H. Maharani Sri Vijaykuverba Saheb of Morvi ( 1963 (49) ITR 594 (Bom)) head-note of which is extractedA Voluntary payment which is made entirely without consideration and is not tractable to any source which a practical man may regard as a real source of his income but depend entirely on the whim of the donor cannot fall in the category of income The ruler of a native State abdicated in favour of his son in January 1948. From April, 1949, onwards his son paid him a monthly allowance. The allowance was not paid under any custom or usage. The allowance could not be regarded as maintenance allowance, as the assessee possessed a large fortune "Held, that as the payments were commenced long after the ruler had abdicated, they were not made under a legal or contractual obligation. As the allowances were not also made under a custom or usage or as a maintenance allowance, they were not assessable." 36. The position is exactly the same. The payment made by the Government is undoubtedly voluntary. However, it has no origin in what might be called the real source of income. No doubt Section 15(1) proviso clause (d) enables the application to seek payment but that is far from saying that it is a source. Therefore, it cannot afford any foundation for such a source. Further, it is a compassionate payment, for such length of period as the Government may, in its discretion, order 37. Lastly, we may refer to Kamal Behari Lal Singha case ( 1971 (3) SCC 540 : 1971 (82) ITR 460 ) which is pressed into service by the Revenue, to support its contention one has to look at the character of the payment in the hand of the receiver and the source from which the payment is made has no bearing on the question. We will extract the head-note (from ITR) of this ruling "During the accounting period ending April 13, 1950, the assessee, who was a shareholder in a company, received a dividend of Rs. 13, 200 from the company. Out of that amount a sum of Rs. 8, 829 was paid out of capital gains received by the company in the shape of salamis and land acquisition compensation receipt after March 31, 1948. The question was whether that part of the dividend attributable to salamis and compensation for land acquisition was taxable in the hands of the assesseeHeld, that the assessee had a beneficial interest in that sum in the hands of the company. Undoubtedly, the amount received by the company towards salami and compensation of acquisition of its lands was a capital receipt in the hands of the company and when the sum was distributed amongst its shareholders each of the shareholders took a share of the capital assets to which they were beneficially entitled. The receipt of Rs. 8, 829 was a capital receipt in the hands of the assessee. The fact that the sum was distributed as dividend did not change the true nature of the receipt; a receipt was what it was and not what it was calledTrustees of the Will of H. K. Brodie v. IRC ( 1933 (17) Tax(Cases) 432 (KB) appliedHeld also that the part of the dividend received by the assessee attributable to land acquisition compensation received by the company after March 31, 1948, was not receipt of dividend within the meaning of Section 2(6-A) of the Income Tax Act, 1922CIT v. Nalin Behari Lall Singha ( 1969 (2) SCC 310 : 1969 (74) ITR 849 ), followedIt is now well settled that in order to find out whether a receipt is a capital receipt or a revenue receipt one has to see what it is in the hands of the receiver and not its nature in the hands of the payer. In other words the nature of the receipt is determined entirely by its character in the hands of the receiver and the source from which the payment is made has no bearing on the question. Where an amount is paid which, so far as the payer is concerned, is paid wholly or partly out or capital, and the receiver receives it as income on his part, the entire receipt is taxable in the hands of the receiver." 38. This is a case of compensation paid under the Land Acquisition Act. It was held that a compensation as such would be capital receipt in the hands of the receiver and the fact that it was distributed as dividends would not change the true nature of the receipt
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as something other than the compensation for the loss of the Jagir. They were, therefore, not treated as capital as representing compensation for the Jagir. If they were treated as capital for the reason that they were not compensation for the loss of Jagir, we find no ground on which we can say that they were capital. It would follow that they must be income and taxable as such. They were certainly not windfall for a right to them was created by the Abolition Regulation, a right which under Section 21 could be enforced in a civil court. Then we find that these allowances were payable with a regularity and were of a recurring nature, both of which are recognised as characteristic of income : see CIT v. Shaw Wallace and Co. 1932 (59) ILR(Cal) 1343, 1350 : 1932 AIR(PC) 138 : 59 IA 206) Next, we observe that the Regulation advisedly called the payments maintenance allowance, a nomenclature peculiarly suited to payments of the nature of income.Therefore, in this case, the maintenance allowance was qualified by the statute and it was a nomenclature peculiarly suited to payments of the nature ofas we have pointed out just now, maintenance allowance is qualified by statute unlike the present case which is purely a discretionary payment. It is no use contending as also observed by the High Court that after the order is passed an enforceable right arises. On the contrary the question would be whether the statute gives an enforceable right. We think in such of those cases falling under clause (d) of the proviso to Section 15 (1) of the Act, no statutory right is created. This is unlike those cases falling under clauses (i), (ii) and (iii) of sub-section (1) of Section 15. These constitute different clauses as has already been pointed out by us. The fact that the assessee has applied for a grant for maintenance, nor again, the periodicity of payment, would be conclusive as we will demonstrateTherefore, the observation of the privy Council in CIT v. Shaw Wallace & Co. case 1932 (59) ILR(Cal) 1343, 1350 : 1932 AIR(PC) 138 : 59 IA 206) cannot be pressed into service as of general application as is sought to be done by the learned counsel for the Revenue.Thus it is clear that the observation made by this court in Rameshwara Rao case ( 1963 (49) ITR 144 : 1967 AIR(SC) 290 : 1964 (2) SCR 847 ) must be read in the light of the facts of the case. From the ruling in S. R. Y Sivaram Prasad Bahadur ( 1971 (3) SCC 726 , 732 : 1971 (82) ITR 527 , 535) it is clear that what is decisive of the character is the quality of the payment.This was the reason why we said neither the nomenclature nor the periodicity of the payment would be the determinative factors. Regards must be had only to the nature and quality of payment. The High Court took the view that this is not compensation. One thing that is certain is that the assessee lost her right to those allowances. Thereafter, on an application by way of compassion the payment is made. The mere fact, after the order is made it becomes an enforceable right, is neither here nor there. The reliance on Rameshwara Rao case ( 1963 (49) ITR 144 : 1967 AIR(SC) 290 : 1964 (2) SCR 847 ) does not seem to be correct in view of what we have pointed out above33. It has already been seen that the marginal heading of Section 15 is "compensation". The fact that under clauses (i), (ii) and (iii) of Section 15(1) the compensation is paid as of right and in cases falling under clause (d) of the proviso, it is a discretionary payment, would not stamp the payment with a character of revenue. As to how a marginal heading has to be construed can be gathered from Chandroji Rao case ( 1970 (2) SCC 23 : 1970 (77) ITR 743 ). It is stated therein that the marginal heading to a section cannot control the interpretation of the words of the Section particularly where the meaning of the section is clear and unambiguous34. For a moment, we are not interpreting the words of the section but we are only holding that even a payment under clause (d) is nothing but a compensation because as the facts disclose the amount of Rs. 10 lakhs out of a trust property in a Bank of Kolhapur was misappropriated35. There is no compulsion on the part of the Government to make the payment nor is the Government obliged to make the payment since it is purely discretionary.The position is exactly the same. The payment made by the Government is undoubtedly voluntary. However, it has no origin in what might be called the real source of income. No doubt Section 15(1) proviso clause (d) enables the application to seek payment but that is far from saying that it is a source. Therefore, it cannot afford any foundation for such a source. Further, it is a compassionate payment, for such length of period as the Government may, in its discretion,This is a case of compensation paid under the Land Acquisition Act. It was held that a compensation as such would be capital receipt in the hands of the receiver and the fact that it was distributed as dividends would not change the true nature of theA case similar to the one hand is H. H. Maharani Shri Vijaykuverba Saheb of Morvi ( 1963 (49) ITR 594 (Bom)) wherein the High Court held that a voluntary payment without consideration cannot fall in the category of income. The position here is exactly same. There is no compulsion on the part of the Government to give any allowance. It is purely discretionary. It cannot be got over by saying that after the order is passed the assessee gets a right. That has nothing to do in determining the question
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T. V. R. V. Radhakrishnana Chettiar & Others Vs. State of Tamil Nadu | Ray, C.J.1. These two appeals are by special leave from the judgment dated 4 July, 1972 of the High Court of Madras.2. The appellants asked for a writ of certiorari to quash the orders of the Local Administration Department dated 14 April 1972.3. On 9 November 1971 the State Government gave a notice under Section 155 of the Tamil Nadu Panchayats Act herein after referred to as the Act calling upon Batlagundu Panchyat Union Council to show cause why it should not be dissolved for one year with effect from 16 December 1971. The appellants filed a petition under Article 226 of the Constitution in the High Court of Madras to quash the said order. The High Court on 4 December, 1971 dismissed the petition. The Government thereafter gave notice dated 24 January, 1972 under Section 155 of the Act calling upon the Panchayat Union Council to show cause why it should not be dissolved as mentioned in the notice dated 9 November, 1971. The appellants submitted their explanation. Thereafter on 14 April, 1972 the State Government dissolved the Panchayat Union Council. This appeal is against that order.4. The appellants questioned the legality of the order in the High Court Article 226. During the pendency of the application on 2 May, 1972 a meeting of the Panchayat Union Council was convened under the direction of the High Court. The Panchayat Union Council passed the resolution accepting the proposal of the Government for the dissolution of the Panchayat, 12 persons voted in favour of the resolution and 7 against the resolution for dissolution of the Panchayat.5. On 4 July, 1972 the High Court dismissed the petition.6. In the notice calling upon the Panchayat Union Council to show cause as to why it should not be dissolved it was recited that the administration of the Union Council was paralysed because of the deadlock created by the members of the said Panchayat Union Council. The State Government was of opinion that the Union Council was persistently making default in performing the duties imposed on it by law. First, it was alleged that the Panchayat Union Council refused to pass the Revised Estimate for 1970-71 and the Budget Estimate for 1971-72, brought before the Council at its meeting held on 12 February, 1971. The second ground was that under Section 47(1) of the Act not more than sixty days should elapse between one meeting and an other. There were two spells, one between 12 February, 1971 and 7 May, 1971 and the other between 7 May, 1971 and 9 July, 1971 when the meeting was not convened over after the lapse of sixty days. The third ground was that the Council did not allow any of the subjects brought before it at the meetings held on 7 May, 1971 and 9 July, 1971 to be passed.7. The High Court did not accept the appellate contention that the order was made mala fide to remove the appellant from the office of the Chairman.8. The only contention which was advanced here was that the appellant had not been given copies of the report of the Collector dated 29 September, 1971 and the report of the Director of Rural Development dated 8 November, 1971. The High Court said that the substance of the reports was given in the form of grounds in the show cause notice and the appellants was called upon to answer the same. Furthermore, it appears that the three grounds related to facts as to whether the budgets were passed, whether meetings were called and whether subjects brought before the meeting were allowed to be passed. These three grounds on which the appellants were asked to show cause were questions of fact. The reports which the appellants asked for had nothing more to do with any of the grounds. The appellants were not asked to give any explanation in respect of any report. | 0[ds]8. The only contention which was advanced here was that the appellant had not been given copies of the report of the Collector dated 29 September, 1971 and the report of the Director of Rural Development dated 8 November, 1971. The High Court said that the substance of the reports was given in the form of grounds in the show cause notice and the appellants was called upon to answer the same. Furthermore, it appears that the three grounds related to facts as to whether the budgets were passed, whether meetings were called and whether subjects brought before the meeting were allowed to be passed. These three grounds on which the appellants were asked to show cause were questions of fact. The reports which the appellants asked for had nothing more to do with any of the grounds. The appellants were not asked to give any explanation in respect of any report. | 0 | 702 | 167 | ### Instruction:
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Ray, C.J.1. These two appeals are by special leave from the judgment dated 4 July, 1972 of the High Court of Madras.2. The appellants asked for a writ of certiorari to quash the orders of the Local Administration Department dated 14 April 1972.3. On 9 November 1971 the State Government gave a notice under Section 155 of the Tamil Nadu Panchayats Act herein after referred to as the Act calling upon Batlagundu Panchyat Union Council to show cause why it should not be dissolved for one year with effect from 16 December 1971. The appellants filed a petition under Article 226 of the Constitution in the High Court of Madras to quash the said order. The High Court on 4 December, 1971 dismissed the petition. The Government thereafter gave notice dated 24 January, 1972 under Section 155 of the Act calling upon the Panchayat Union Council to show cause why it should not be dissolved as mentioned in the notice dated 9 November, 1971. The appellants submitted their explanation. Thereafter on 14 April, 1972 the State Government dissolved the Panchayat Union Council. This appeal is against that order.4. The appellants questioned the legality of the order in the High Court Article 226. During the pendency of the application on 2 May, 1972 a meeting of the Panchayat Union Council was convened under the direction of the High Court. The Panchayat Union Council passed the resolution accepting the proposal of the Government for the dissolution of the Panchayat, 12 persons voted in favour of the resolution and 7 against the resolution for dissolution of the Panchayat.5. On 4 July, 1972 the High Court dismissed the petition.6. In the notice calling upon the Panchayat Union Council to show cause as to why it should not be dissolved it was recited that the administration of the Union Council was paralysed because of the deadlock created by the members of the said Panchayat Union Council. The State Government was of opinion that the Union Council was persistently making default in performing the duties imposed on it by law. First, it was alleged that the Panchayat Union Council refused to pass the Revised Estimate for 1970-71 and the Budget Estimate for 1971-72, brought before the Council at its meeting held on 12 February, 1971. The second ground was that under Section 47(1) of the Act not more than sixty days should elapse between one meeting and an other. There were two spells, one between 12 February, 1971 and 7 May, 1971 and the other between 7 May, 1971 and 9 July, 1971 when the meeting was not convened over after the lapse of sixty days. The third ground was that the Council did not allow any of the subjects brought before it at the meetings held on 7 May, 1971 and 9 July, 1971 to be passed.7. The High Court did not accept the appellate contention that the order was made mala fide to remove the appellant from the office of the Chairman.8. The only contention which was advanced here was that the appellant had not been given copies of the report of the Collector dated 29 September, 1971 and the report of the Director of Rural Development dated 8 November, 1971. The High Court said that the substance of the reports was given in the form of grounds in the show cause notice and the appellants was called upon to answer the same. Furthermore, it appears that the three grounds related to facts as to whether the budgets were passed, whether meetings were called and whether subjects brought before the meeting were allowed to be passed. These three grounds on which the appellants were asked to show cause were questions of fact. The reports which the appellants asked for had nothing more to do with any of the grounds. The appellants were not asked to give any explanation in respect of any report.
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8. The only contention which was advanced here was that the appellant had not been given copies of the report of the Collector dated 29 September, 1971 and the report of the Director of Rural Development dated 8 November, 1971. The High Court said that the substance of the reports was given in the form of grounds in the show cause notice and the appellants was called upon to answer the same. Furthermore, it appears that the three grounds related to facts as to whether the budgets were passed, whether meetings were called and whether subjects brought before the meeting were allowed to be passed. These three grounds on which the appellants were asked to show cause were questions of fact. The reports which the appellants asked for had nothing more to do with any of the grounds. The appellants were not asked to give any explanation in respect of any report.
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Vallabbhai Nathabhai Vs. Bai jivi and Ors | one by the High Court of Gujarat and the other by the High Court of Bombay to which also our attention was drawn. In Shankerlal v. Haria Vagha, Spl. Civil Appeal No. 8 of 1961, D/- 22-8-1961 (Guj) the facts were as follows : One Chandrasingh and his brothers owned Survey Nos. 23/2, 23/3 and 26/5. In 1956-57 opponent 2 surrendered these lands to Chandrasingh who personally cultivated them. Until 1955-56 opponent 1 cultivated Survey No. 26/5. He thereafter surrendered that Survey number to Chandrasingh and his brothers who personally cultivated it thereafter. The Mamlatdar admittedly had held no inquiry in respect of these surrenders under Section 15. On January 28, 1959 Chandrasingh and his brothers said these lands to the petitioners and the petitioners thereafter cultivated them in 1959-60. In 1959 opponents 1 and 2 applied to the Collector under Section 84 and the Collector ordered restoration of possession to opponents 1 and 2. The Gujarat Revenue Tribunal rejected a revision application filed by the petitioners against the said order. In a writ petition under Art. 227 the petitioners raised two contentions before the High Court : (1) that they were not in unauthorised occupation or wrongfully in possession as they derived title from the owners, their vendors, and (2) that in any event the opponents had a remedy under Section 29 (1) and therefore could not have recourse to Sec. 84. As regards the first contention the High Court held that the surrenders by opponents 1 and 2, not being in writing and unverified, were not binding on them, the relationship of tenant and landlord had not, therefore, terminated and opponents 1 and 2 were entitled to possession of the lands. That was the position which obtained on January 28, 1959 when Chandrasingh and his brothers purported to sell the lands to the petitioners. The petitioners, therefore, were in unauthorised possession as Chandrasingh and his brothers were not entitled to possession and could not transfer possession to the petitioners. The High Court also held that the said sale was contrary to Section 64 and therefore invalid and did not create any rights as to ownership or possession in favour of the petitioners. The possession of the petitioners, therefore, was unauthorised and wrongful and Section 84 applied and the first contention failed. As to the second contention the High Court held that under Section 29 (1) a tenant could apply to the Mamlatdar for possession but that required that the right to possession must arise "under the provisions of the Act". If the tenant did not seek to enforce a right arising under any of the provisions of the Act but claimed possession on his own title as a tenant, Section 29 (1) would not apply and his remedy would be under Section 84 only. The High Court held that when a tenant claimed possession not relying upon any incident of his contract of tenancy nor on any provisions of the Act but on his own title to possession, that is, to protect his possession as a tenant against a trespasser Section 84 and not Section 29 (1) would apply even though the land the possession of which he claimed was the land of which he was a tenant and the trespasser was his landlord. What the tenant in such a case was seeking to do was not to enforce his right as a tenant under the provisions of the Act but he was enforcing his right against third parties, namely, the petitioners in that case who were in wrongful occupation. The tenant was claiming possession not under the provisions of the Act but on his own title, albeit as a tenant, against a person who had no title to ownership or possession in the land and therefore Section 29 (1) did not apply to such a case. Consequently, Section 29 (1) was not another provision providing for eviction which opponents 1 and 2 could avail of. In Krishna Mahar v. Hussain Miya, Spl. Civil Appeal No. 207 of 1956 decided by Shah, and Vyas, JJ. on 19-6-1956 (Bom) the respondent was the owner of the land in question. He applied under Sec. 29 (2) to the Mamlatdar. The Mamlatdar passed an order directing the petitioner, the tenant, to hand over possession. The petitioner appealed to the Collector under Section 74 of the Act who set aside the Mamlatdars order. But before the Collector passed his said order the respondent executed the Mamlatdars order and obtained possession. The petitioner then obtained possession in pursuance of the Collectors said order but the respondent forcibly dispossessed him and thereupon on January l0, 1952 the petitioner complained to the Mamlatdar. The Mamlatdar expressed his inability to assist him and thereupon the petitioner applied to the Collector under Section 84. The Collector held that the respondent was in wrongful possession and passed an order of eviction. The Revenue Tribunal however, set aside that order holding that the petitioners application was barred by limitation. An application for condonation of delay was also rejected. The petitioner, thereupon filed a petition under Article 227. The High Court held that there was a clear distinction between an application under Section 29 (1) and one under Section 84, for, under Section 19 (1) whereas the tenant would be claiming the right to possession under the provisions of the Act, under Section 84 he would be claiming the right to possession not under any of the provisions of the Act but on his own title to possession as a tenant. Such an application could be even against a person who was his landlord qua the land in question if such landlord was in unauthorised occupation or wrongful possession. These two decisions again do not lay down anything inconsistent to what we have said above on the scope and interpretation of Sec. 29 (1) and Section 84. We do not therefore see how either of these two decisions can be availed of by Mr. Bhandare in support of his contentions. | 1[ds]We do not have to decide in the present case whether the said condition of there bring no other provision in the Act providing for eviction of a person in unauthorised occupation or wrongful possession applies only to cases falling under Clause (c) or to all cases under Clauses (a), (b) or (c), as in our opinion the present case is clearly one falling under Clause (c) and not Cl. (a) or (b) of Section 84. Clause (b) obviously cannot apply as the land in question was not one, the management of which was assumed under the provisions of the Act, namely, Sections 44, 45 and 61. So far as Clause (a) is concerned, it applies to cases in respect of the land, the transfer or acquisition of which either by the act of parties or by operation of law is invalid under the provisions of the Act. Clause (a) clearly refers to Ch. V of the Act which lays down certain restrictions on transfers of agricultural lands and acquisition of estates and lands. Sections 63, 64 and 65 in that chapter prohibit transfers of agricultural land to non-agriculturists and recognize only sales to persons and at prices specified therein.Clause (a) therefore, applies to transfers or acquisitions which are in breach of the provisions of Ch. V and possession or occupation whereof has been obtained under such invalid transfers or acquisitions. That being the position, the instant case would fall only under Clause (c) and not under Clause (a) as contended by Mr. Bhandare, and therefore, the condition that S. 84 would only apply to cases for which there is no other remedy under any of the provisions of the Act must apply to the present case. This condition shows that while giving drastic powers of summary eviction to an administrative officer the legislature was careful to restrict this power firstly because the result otherwise would be to deprive the person evicted under Section 84 of his remedy of appeal before the Collector which he would have if the order were to be passed under Section 29 (1) and secondly, because it would enable a tenant to by-pass a judicial inquiry by the Mamlatdar under Sec. 29 (1) by directly applying to the Collector under Section 84. Such a result could not have been intended by the legislature. Therefore, the contention that.Ss. 29 (1) and 84 provide alternative remedies and a choice to the tenant cannot possibly be correct.words "any person unauthorisedly occupying or wrongfully in possession of any land" in Section 84, no doubt, are words of wide import and would include a landlord who is in unauthorised occupation or is wrongfully in possession.A landlord who under an invalid surrender is in possession of the land is, no doubt, a person in unauthorised occupation or is wrongfully in possession. But then Section 84 in express terms limits its application to three types of cases only, namely of a person unauthorisedly occupying or wrongfully in possession of the land (a) the transfer or acquisition of which etc. is invalid under the Act, or (b) the management of which has been assumed under the Act, or (c) to the use and occupation of which he is not entitled under the provisions of the Act and the said provisions do not provide for the eviction of such person.5. In the case of a surrender which is not valid and binding on the tenant there is, as aforesaid, no termination of tenancy, and therefore, the landlord a not entitled to retain the land even though possession thereof has been handed over to him or has been voluntarily taken by him. The position in such a case is that the tenant has a right to apply to the Mamlatdar for restoration of possession to him claiming that there has been no termination of tenancy, that his possession continues to be protected by the provisions of the Act and that, therefore, possession should be restored to him. Such an application lies under Sec. 29 (1) and, when so made, it becomes the duty of the Mamlatdar under Sec. 70, Cl. (n) read with Sec. 29 (1) to put the tenant in possession of the land in question "under this Act". In such a case the tenant is claiming possession under the provisions of the and not on the strength of his own title, as when he applies for possession against a trespasser. That clearly being the position, propositions 3, 4 and 5 of Mr. Bhandare cannot be sustained. | 1 | 4,591 | 868 | ### Instruction:
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one by the High Court of Gujarat and the other by the High Court of Bombay to which also our attention was drawn. In Shankerlal v. Haria Vagha, Spl. Civil Appeal No. 8 of 1961, D/- 22-8-1961 (Guj) the facts were as follows : One Chandrasingh and his brothers owned Survey Nos. 23/2, 23/3 and 26/5. In 1956-57 opponent 2 surrendered these lands to Chandrasingh who personally cultivated them. Until 1955-56 opponent 1 cultivated Survey No. 26/5. He thereafter surrendered that Survey number to Chandrasingh and his brothers who personally cultivated it thereafter. The Mamlatdar admittedly had held no inquiry in respect of these surrenders under Section 15. On January 28, 1959 Chandrasingh and his brothers said these lands to the petitioners and the petitioners thereafter cultivated them in 1959-60. In 1959 opponents 1 and 2 applied to the Collector under Section 84 and the Collector ordered restoration of possession to opponents 1 and 2. The Gujarat Revenue Tribunal rejected a revision application filed by the petitioners against the said order. In a writ petition under Art. 227 the petitioners raised two contentions before the High Court : (1) that they were not in unauthorised occupation or wrongfully in possession as they derived title from the owners, their vendors, and (2) that in any event the opponents had a remedy under Section 29 (1) and therefore could not have recourse to Sec. 84. As regards the first contention the High Court held that the surrenders by opponents 1 and 2, not being in writing and unverified, were not binding on them, the relationship of tenant and landlord had not, therefore, terminated and opponents 1 and 2 were entitled to possession of the lands. That was the position which obtained on January 28, 1959 when Chandrasingh and his brothers purported to sell the lands to the petitioners. The petitioners, therefore, were in unauthorised possession as Chandrasingh and his brothers were not entitled to possession and could not transfer possession to the petitioners. The High Court also held that the said sale was contrary to Section 64 and therefore invalid and did not create any rights as to ownership or possession in favour of the petitioners. The possession of the petitioners, therefore, was unauthorised and wrongful and Section 84 applied and the first contention failed. As to the second contention the High Court held that under Section 29 (1) a tenant could apply to the Mamlatdar for possession but that required that the right to possession must arise "under the provisions of the Act". If the tenant did not seek to enforce a right arising under any of the provisions of the Act but claimed possession on his own title as a tenant, Section 29 (1) would not apply and his remedy would be under Section 84 only. The High Court held that when a tenant claimed possession not relying upon any incident of his contract of tenancy nor on any provisions of the Act but on his own title to possession, that is, to protect his possession as a tenant against a trespasser Section 84 and not Section 29 (1) would apply even though the land the possession of which he claimed was the land of which he was a tenant and the trespasser was his landlord. What the tenant in such a case was seeking to do was not to enforce his right as a tenant under the provisions of the Act but he was enforcing his right against third parties, namely, the petitioners in that case who were in wrongful occupation. The tenant was claiming possession not under the provisions of the Act but on his own title, albeit as a tenant, against a person who had no title to ownership or possession in the land and therefore Section 29 (1) did not apply to such a case. Consequently, Section 29 (1) was not another provision providing for eviction which opponents 1 and 2 could avail of. In Krishna Mahar v. Hussain Miya, Spl. Civil Appeal No. 207 of 1956 decided by Shah, and Vyas, JJ. on 19-6-1956 (Bom) the respondent was the owner of the land in question. He applied under Sec. 29 (2) to the Mamlatdar. The Mamlatdar passed an order directing the petitioner, the tenant, to hand over possession. The petitioner appealed to the Collector under Section 74 of the Act who set aside the Mamlatdars order. But before the Collector passed his said order the respondent executed the Mamlatdars order and obtained possession. The petitioner then obtained possession in pursuance of the Collectors said order but the respondent forcibly dispossessed him and thereupon on January l0, 1952 the petitioner complained to the Mamlatdar. The Mamlatdar expressed his inability to assist him and thereupon the petitioner applied to the Collector under Section 84. The Collector held that the respondent was in wrongful possession and passed an order of eviction. The Revenue Tribunal however, set aside that order holding that the petitioners application was barred by limitation. An application for condonation of delay was also rejected. The petitioner, thereupon filed a petition under Article 227. The High Court held that there was a clear distinction between an application under Section 29 (1) and one under Section 84, for, under Section 19 (1) whereas the tenant would be claiming the right to possession under the provisions of the Act, under Section 84 he would be claiming the right to possession not under any of the provisions of the Act but on his own title to possession as a tenant. Such an application could be even against a person who was his landlord qua the land in question if such landlord was in unauthorised occupation or wrongful possession. These two decisions again do not lay down anything inconsistent to what we have said above on the scope and interpretation of Sec. 29 (1) and Section 84. We do not therefore see how either of these two decisions can be availed of by Mr. Bhandare in support of his contentions.
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We do not have to decide in the present case whether the said condition of there bring no other provision in the Act providing for eviction of a person in unauthorised occupation or wrongful possession applies only to cases falling under Clause (c) or to all cases under Clauses (a), (b) or (c), as in our opinion the present case is clearly one falling under Clause (c) and not Cl. (a) or (b) of Section 84. Clause (b) obviously cannot apply as the land in question was not one, the management of which was assumed under the provisions of the Act, namely, Sections 44, 45 and 61. So far as Clause (a) is concerned, it applies to cases in respect of the land, the transfer or acquisition of which either by the act of parties or by operation of law is invalid under the provisions of the Act. Clause (a) clearly refers to Ch. V of the Act which lays down certain restrictions on transfers of agricultural lands and acquisition of estates and lands. Sections 63, 64 and 65 in that chapter prohibit transfers of agricultural land to non-agriculturists and recognize only sales to persons and at prices specified therein.Clause (a) therefore, applies to transfers or acquisitions which are in breach of the provisions of Ch. V and possession or occupation whereof has been obtained under such invalid transfers or acquisitions. That being the position, the instant case would fall only under Clause (c) and not under Clause (a) as contended by Mr. Bhandare, and therefore, the condition that S. 84 would only apply to cases for which there is no other remedy under any of the provisions of the Act must apply to the present case. This condition shows that while giving drastic powers of summary eviction to an administrative officer the legislature was careful to restrict this power firstly because the result otherwise would be to deprive the person evicted under Section 84 of his remedy of appeal before the Collector which he would have if the order were to be passed under Section 29 (1) and secondly, because it would enable a tenant to by-pass a judicial inquiry by the Mamlatdar under Sec. 29 (1) by directly applying to the Collector under Section 84. Such a result could not have been intended by the legislature. Therefore, the contention that.Ss. 29 (1) and 84 provide alternative remedies and a choice to the tenant cannot possibly be correct.words "any person unauthorisedly occupying or wrongfully in possession of any land" in Section 84, no doubt, are words of wide import and would include a landlord who is in unauthorised occupation or is wrongfully in possession.A landlord who under an invalid surrender is in possession of the land is, no doubt, a person in unauthorised occupation or is wrongfully in possession. But then Section 84 in express terms limits its application to three types of cases only, namely of a person unauthorisedly occupying or wrongfully in possession of the land (a) the transfer or acquisition of which etc. is invalid under the Act, or (b) the management of which has been assumed under the Act, or (c) to the use and occupation of which he is not entitled under the provisions of the Act and the said provisions do not provide for the eviction of such person.5. In the case of a surrender which is not valid and binding on the tenant there is, as aforesaid, no termination of tenancy, and therefore, the landlord a not entitled to retain the land even though possession thereof has been handed over to him or has been voluntarily taken by him. The position in such a case is that the tenant has a right to apply to the Mamlatdar for restoration of possession to him claiming that there has been no termination of tenancy, that his possession continues to be protected by the provisions of the Act and that, therefore, possession should be restored to him. Such an application lies under Sec. 29 (1) and, when so made, it becomes the duty of the Mamlatdar under Sec. 70, Cl. (n) read with Sec. 29 (1) to put the tenant in possession of the land in question "under this Act". In such a case the tenant is claiming possession under the provisions of the and not on the strength of his own title, as when he applies for possession against a trespasser. That clearly being the position, propositions 3, 4 and 5 of Mr. Bhandare cannot be sustained.
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Hyderabad Asbestos Cement Products Ltd Vs. The Employees Insurance Court & Anr | was introduces and it appears the amendment was introduced for the purpose of covering cases which were held to be outside the scope of S. 2(9) by the two decisions. The amended section includes any person employed for wages on any work connected with the administration of the factory or any part, department or branch thereof or with the purchase of raw materials or for the distribution or sale of products of the factory. It will be seen that the work connected with the administration of the factory, the purchase of raw materials and the distribution or sale of products are brought within the scope of the definition. After the amendment, therefore, the plea that employment in connection with the administration of the factory or with the purchase of raw materials or distribution or sale of products cannot be contended to be as not falling within the definition. 12. The contention of the learned counsel for the appellants is that the word "factory" is confined only to persons who are employed with the manufacturing process. The definition of the word factory is as follows :"factory" means any premises including the precincts thereof whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on but does not include a mine subject to the operation of the Mines Act, 1952 or a resting shed;" The word factory is confined to the premises including the precincts thereof where the manufacturing process is carried on. The submission on behalf of the appellants is that an employee of the factory should not only be an employee falling within the definition of the word "employee" but also an employee of the factory, i.e., of a factory as defined in S. 2(12). In support of their plea reference was made to S.38 of the Act which requires that all employees of the factories should be insured. Section 38 lays down that all employees in factories, or establishments to which this Act applies shall be insured in the manner provided by this Act. It was submitted that to fall within the charging S. 38 employees should be employees in factories and not employees connected with the work of the factory Anil Dewan appearing for the Indian Chemical Industries submitted that the word "employees in factories" are significant and that only employees who are employed in the factory are required to be insured and not employees who are employed in connection with the work of the factory. The learned counsel proceeded to point out that the amendment is confined only to persons employed on any work connected with the administration and not employed in the factory and submitted that the applicability should be strictly confined to the employees in factories. The contention put forward it was pleaded is more reasonable as the Act through out maintains a distinction between factory and establishments and it is against the tenor of the Act to bring employees in establishments within the meaning of employees of the factories. The learned counsel also pointed out that in various firms the employees themselves are against their being included within the scope of the Act and the resultant position will be that as between two establishments which are functioning under the same conditions one establishment which is connected with the sale of finished product of the factories will come within the scope of the Employees State Insurance Act whereas the other establishment would be outside the purview of the Employees State Insurance Act. On a careful consideration of Ss. 2(9) S. 2(12), Ss. 38 and S. 31 we are unable to accept the restricted interpretation sought to be put upon the words "Employees in factories". Even before the amendment the word "employee" included persons connected with the work of the factory. The Supreme Court has laid down that a person employed in connection with the work of the factory would fall within the definition as it stood before the amendment and it may not be open to the learned counsel to contend that it is only employees that are employed in the factory that would fall within the definition. The definition before the amendment as well as after the amendment would include not only persons employed in the factory but also in connection with the work of the factory. The S.39 of the Act makes the position clear It provides that the contribution payable under the Act is in respect of an employee. It is not confined only to employees in factories. We see in justification for reading the words employees in factories in S. 38 as meaning persons employed in factories only. We are unable to accept the contention that the employees that are required to be insured under the Act are only those employed in factories defined under S.2(12) of the Act. 13. It was submitted that the test as to whether an employee is an employee "in a factory" is the test of not physical presence or absence outside the precincts of the factory but the test is whether he is under the control of the factory and is on the factory wage roll, or other similar tests. We are unable to accept the contention for on a reading of the relevant section it is clear that the word "employee" would include not only persons employed in the factory but also persons connected with the work of the factory. The employee may be working within the factory or outside the factory and may be employed for administrative purposes or for purchase of raw materials or for sale of the finished goods all such employees are included within the definition of "employee". A recent decision of the Bench of the Madras High Court in W.Ps. 144-149 and 331 of 1971 dated 14th October, 1976 has also taken a similar view. 14. | 0[ds]The law, therefore, is clear that any employee who is connected with the works of the factory would be an employee under S. 2(9) whether the work within the factory or outside its premises11. The amendment to S. 2(9) introducing the inclusive definition referred to above was enacted by Act 44 of 1966 which came into force on 28-1-1968. It may be noted that the decisions of the Bombay and the Madras High Courts referred to above (supra), were rendered before the amendment was introduces and it appears the amendment was introduced for the purpose of covering cases which were held to be outside the scope of S. 2(9) by the two decisions. The amended section includes any person employed for wages on any work connected with the administration of the factory or any part, department or branch thereof or with the purchase of raw materials or for the distribution or sale of products of the factory. It will be seen that the work connected with the administration of the factory, the purchase of raw materials and the distribution or sale of products are brought within the scope of the definition. After the amendment, therefore, the plea that employment in connection with the administration of the factory or with the purchase of raw materials or distribution or sale of products cannot be contended to be as not falling within the definitionThe word factory is confined to the premises including the precincts thereof where the manufacturing process is carried onWe are unable to accept the contention for on a reading of the relevant section it is clear that the word "employee" would include not only persons employed in the factory but also persons connected with the work of the factory. The employee may be working within the factory or outside the factory and may be employed for administrative purposes or for purchase of raw materials or for sale of the finished goods all such employees are included within the definition of "employee". A recent decision of the Bench of the Madras High Court in W.Ps. 144-149 and 331 of 1971 dated 14th October, 1976 has also taken a similar viewWe are unable to accept the contention for on a reading of the relevant section it is clear that the word "employee" would include not only persons employed in the factory but also persons connected with the work of the factory. The employee may be working within the factory or outside the factory and may be employed for administrative purposes or for purchase of raw materials or for sale of the finished goods all such employees are included within the definition of "employee". A recent decision of the Bench of the Madras High Court in W.Ps.9 and 331 of 1971 dated 14th October, 1976 has also taken a similar | 0 | 3,521 | 510 | ### Instruction:
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was introduces and it appears the amendment was introduced for the purpose of covering cases which were held to be outside the scope of S. 2(9) by the two decisions. The amended section includes any person employed for wages on any work connected with the administration of the factory or any part, department or branch thereof or with the purchase of raw materials or for the distribution or sale of products of the factory. It will be seen that the work connected with the administration of the factory, the purchase of raw materials and the distribution or sale of products are brought within the scope of the definition. After the amendment, therefore, the plea that employment in connection with the administration of the factory or with the purchase of raw materials or distribution or sale of products cannot be contended to be as not falling within the definition. 12. The contention of the learned counsel for the appellants is that the word "factory" is confined only to persons who are employed with the manufacturing process. The definition of the word factory is as follows :"factory" means any premises including the precincts thereof whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on but does not include a mine subject to the operation of the Mines Act, 1952 or a resting shed;" The word factory is confined to the premises including the precincts thereof where the manufacturing process is carried on. The submission on behalf of the appellants is that an employee of the factory should not only be an employee falling within the definition of the word "employee" but also an employee of the factory, i.e., of a factory as defined in S. 2(12). In support of their plea reference was made to S.38 of the Act which requires that all employees of the factories should be insured. Section 38 lays down that all employees in factories, or establishments to which this Act applies shall be insured in the manner provided by this Act. It was submitted that to fall within the charging S. 38 employees should be employees in factories and not employees connected with the work of the factory Anil Dewan appearing for the Indian Chemical Industries submitted that the word "employees in factories" are significant and that only employees who are employed in the factory are required to be insured and not employees who are employed in connection with the work of the factory. The learned counsel proceeded to point out that the amendment is confined only to persons employed on any work connected with the administration and not employed in the factory and submitted that the applicability should be strictly confined to the employees in factories. The contention put forward it was pleaded is more reasonable as the Act through out maintains a distinction between factory and establishments and it is against the tenor of the Act to bring employees in establishments within the meaning of employees of the factories. The learned counsel also pointed out that in various firms the employees themselves are against their being included within the scope of the Act and the resultant position will be that as between two establishments which are functioning under the same conditions one establishment which is connected with the sale of finished product of the factories will come within the scope of the Employees State Insurance Act whereas the other establishment would be outside the purview of the Employees State Insurance Act. On a careful consideration of Ss. 2(9) S. 2(12), Ss. 38 and S. 31 we are unable to accept the restricted interpretation sought to be put upon the words "Employees in factories". Even before the amendment the word "employee" included persons connected with the work of the factory. The Supreme Court has laid down that a person employed in connection with the work of the factory would fall within the definition as it stood before the amendment and it may not be open to the learned counsel to contend that it is only employees that are employed in the factory that would fall within the definition. The definition before the amendment as well as after the amendment would include not only persons employed in the factory but also in connection with the work of the factory. The S.39 of the Act makes the position clear It provides that the contribution payable under the Act is in respect of an employee. It is not confined only to employees in factories. We see in justification for reading the words employees in factories in S. 38 as meaning persons employed in factories only. We are unable to accept the contention that the employees that are required to be insured under the Act are only those employed in factories defined under S.2(12) of the Act. 13. It was submitted that the test as to whether an employee is an employee "in a factory" is the test of not physical presence or absence outside the precincts of the factory but the test is whether he is under the control of the factory and is on the factory wage roll, or other similar tests. We are unable to accept the contention for on a reading of the relevant section it is clear that the word "employee" would include not only persons employed in the factory but also persons connected with the work of the factory. The employee may be working within the factory or outside the factory and may be employed for administrative purposes or for purchase of raw materials or for sale of the finished goods all such employees are included within the definition of "employee". A recent decision of the Bench of the Madras High Court in W.Ps. 144-149 and 331 of 1971 dated 14th October, 1976 has also taken a similar view. 14.
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The law, therefore, is clear that any employee who is connected with the works of the factory would be an employee under S. 2(9) whether the work within the factory or outside its premises11. The amendment to S. 2(9) introducing the inclusive definition referred to above was enacted by Act 44 of 1966 which came into force on 28-1-1968. It may be noted that the decisions of the Bombay and the Madras High Courts referred to above (supra), were rendered before the amendment was introduces and it appears the amendment was introduced for the purpose of covering cases which were held to be outside the scope of S. 2(9) by the two decisions. The amended section includes any person employed for wages on any work connected with the administration of the factory or any part, department or branch thereof or with the purchase of raw materials or for the distribution or sale of products of the factory. It will be seen that the work connected with the administration of the factory, the purchase of raw materials and the distribution or sale of products are brought within the scope of the definition. After the amendment, therefore, the plea that employment in connection with the administration of the factory or with the purchase of raw materials or distribution or sale of products cannot be contended to be as not falling within the definitionThe word factory is confined to the premises including the precincts thereof where the manufacturing process is carried onWe are unable to accept the contention for on a reading of the relevant section it is clear that the word "employee" would include not only persons employed in the factory but also persons connected with the work of the factory. The employee may be working within the factory or outside the factory and may be employed for administrative purposes or for purchase of raw materials or for sale of the finished goods all such employees are included within the definition of "employee". A recent decision of the Bench of the Madras High Court in W.Ps. 144-149 and 331 of 1971 dated 14th October, 1976 has also taken a similar viewWe are unable to accept the contention for on a reading of the relevant section it is clear that the word "employee" would include not only persons employed in the factory but also persons connected with the work of the factory. The employee may be working within the factory or outside the factory and may be employed for administrative purposes or for purchase of raw materials or for sale of the finished goods all such employees are included within the definition of "employee". A recent decision of the Bench of the Madras High Court in W.Ps.9 and 331 of 1971 dated 14th October, 1976 has also taken a similar
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Commissioner of Central Excise, Pondicherry Vs. M/s. Acer India Ltd | actually removed from the appellants factory fitted with accessories. Therefore, the composite value thereof was the excisable value of the ball bearings. The Tribunal upheld the contention of the Revenue on the basis that (i) the entire article was cleared as ball bearings; (ii) in the price list, invoices and catalogue the assessee had quoted the item as ball bearings and the price for the entire article was stated and (iii) no separate price was quoted for accessories and the ball bearings.3. It is not the case of the Revenue that the snap rings, sleeve lock devices, etc. are parts of ball bearings. It is the Revenues case that these are accessories but they were fitted to the ball bearings when the ball bearing were removed from the appellants factory. The Tariff Entry at the relevant time (No. 49) read, Rolling bearings, that is to say, ball or roller bearings, all sorts". Clearly, what fell under this entry were the ball bearings and not what, admittedly, are the accessories thereof. Accordingly, the conclusion of the Tribunal on this issue must be set aside." 81. Once it is that the computer is complete without the operating softwares, the question of adding the cost of software therewith would not arise since what is under assessment is only the computer. To the same effect is the judgment in Photopone Industries Pvt. Ltd. vs. CCE, Goa, (1999 (108) ELT 523). 82. In Philips India Ltd. vs. Collector of Central Excise, Pune (1997) 6 SCC 31 ), this Court upon noticing the terms and conditions between the manufacturer and their dealers stating the same to be one as between principal and principal observed that making a deduction on this account was uncalled for as the advertisement which the dealer was required to make at its own cost benefited in equal degree the Appellant and the dealer. Similarly, with regard to after-scales service, it was held that the same benefited not only the manufacturer but also the dealer. It was observed: "7. We think that in adjudicating matters such as this, the Excise authorities would do well to keep in mind legitimate business considerations". Conclusion: 83. Computer and operative softwares are different marketable commodities. They are available in the market separately. They are classified differently. The rate of excise duty for computer is 16% whereas that of a software is nil. Accessories of a machine promote the convenience and better utilization of the machine but nevertheless they are not machine itself. The computer and software are distinct and separate, both as a matter of commercial parlance as also under the statute. Although a computer may not be capable of effective functioning unless loaded with softwares, the same would not tantamount to bringing them within the purview of the part of the computer so as to hold that if they are sold along with the computer their value must form part of the assessable value thereof for the purpose of excise duty. Both computer and software must be classified having fallen under 84.71 and 85.24 and must be subject to corresponding rates of duties separately. The informations contains in a software although are loaded in the hard, disc, the operational software does not lose its value and is still marketable as a separate commodity. It does not lose its character as a tangible goods being of the nature of CD-ROM. A licence to use the information contained in a software can be given irrespective of the fact as to whether they are loaded in the computer or not. The fact that the manufacturers put different prices for the computers loaded with different types of operational softwares whether separately or not would not make any difference as regard nature and character of the computer. Even if the Appellants in terms of the provisions of a licence were obliged to preload a software on the computer before clearing the same from the factory, the characteristic of the software cannot be said to have transformed into a hardware so as to make it subject to levy of excise duty along with computer while it is not under the Tariff Act.84. In other words, computers, and softwares are different and distinct goods under the said Act having been classified differently and in that view of the matter, no central excise duty would be leviable upon determination of the value thereof by taking the total value of the computer and software. So far as, the valuation of goods in terms of transaction value thereof, as defined in Section 4(3)(d) of the Act is concerned, suffice it to say that the said provision would be subject to the charging provisions contained in Section 3 of the Act as also Sub-section (1) of Section 4. The expressions "by reason of sale" or "in connection with the sale contained in the definition of transaction value refer to such goods which is excisable to excise duty and not the one which is not so excisable. Section 3 of the Act being the charging section, the definition of transaction value must be read in the text and context thereof and not dehors the same. The legal text contained in Chapter 84, as explained in Chapter Note 6, clearly states that a software, even if contained in a hardware, does not lose its character as such. When an exemption has been granted from levy of any excise duty on software whether it is operating software or application software in terms of heading 85.24, no excise duty can be levied thereupon indirectly, as it was impermissible to levy a tax indirectly. In that view of the matter the decision in PSI Data Systems (supra) must be held to have correctly been rendered.85. We, however, place on record that we have not applied our mind as regard the larger question as to whether the informations contained in a software would be tangible personal property or not or whether preparation of such software would amount to manufacture under different statues. 86 | 0[ds]55. It must be borne in mind that central excise duty cannot be equated with sales tax. They have different connotations and apply in different situations. Central excise duty is chargeable on the excisable goods and not on the goods which are not excisable. Thus, a goods which is not excisable if transplanted into a goods which is excisable would not together make the same excisable goods so as to make the assessee liable to pay excise duty on the combined value of both. Excise duty, in other words, would be leviable only on the goods which answer the definition of excisable goods and satisfy the requirement of Section 3. A machinery provision contained in Section 4 and that too the explanation contained therein by way of definition of transaction value can neither override the charging provision nor by reason thereof a goods which is not excisable would become an excisable one only because one is fitted into the other, unless the context otherwise requires.56. It is not a case where the software is being supplied to the customer along with the computer by way of incentive or gift. The Respondent is charging the price therefor. Software therefore along with a computer is being sold both in the form of the information loaded in the computer as also in the form of a CD-ROM. In the invoice, the composite price of the computer and software is being shown, as noticed hereinbefore and therefrom, the price of the software is only being deducted. The invoice price, thus, also shows the actual price of the computer as also the price of the software together with the licence to use the same. The Appellant while calculating the price of the computer had shown all expenses which are borne by it in terms of the decision of this Court in Union of India and others vs. Bombay Tyre International Ltd. and others (1984) 1 SCC 467 ). Thus, the requirements contained in the second part of the definition of transaction tax are met. Furthermore, invoice value is not always excisable value in respect of the goods.57. In the instant case, having regard to the decision of this Court in Bombay Tyre International Ltd. (supra) the excisable value of the computer has been disclosed. The cost of loading the softwares which would enhance the value of the goods had also been added. There cannot, thus, be any doubt whatsoever that while computing such costs of manufacturing expenses which would add to the value of the excisable goods (in this case the computer) must be taken into consideration but not the value of any other goods which is not excisable.It is profitable to notice at this juncture the general principles of interpretation and in particular Rules 1 and 3 thereof. The interpretative rules, in our opinion, should be considered keeping in view of the Chapter(s) of the Tariff Act.62. Rule 1 of the Rules for the Interpretation of the First Schedule states, that the titles of Sections and Chapters are provided for case of reference only which having regard to Chapter 84 providing for nuclear reactors, boilers, machinery and mechanical appliances; parts thereof are required to be referred to for referred to for reference only. However, for legal purposes, the classification is to be determined according to the terms of the headings. The subject matter of the heading is important. Once a particular subject matter falls within the specified classification, the determination of valuation for the purpose imposition of duty must be done according to the terms of the heading and any relative Section or Chapter Notes unless such headings or Notes otherwise do not require. For our purpose, therefore, the rule of interpretation as contained in Chapter Notes would be given effect to for the purpose of classification in preference to the general rules of interpretation.63. Rule 3, on the other hand, refers to a situation where any reference in a heading to a material or substance includes a reference to mixtures or combinations of that material or substance with other materials or substances, as a result whereof the goods are prima facie classifiable under two or more headings. Only in that event, the different rules of interpretation specified in Rule 3 may be taken recourse to.64. Rule 3 pre-supposes, three conditions under which goods classifiable under two or more headings may be classified under one heading or the other. Such conditions are not applicable in the instant case. Rules 3 of the Rules for interpretation shall not be applicable whereas Rule 1 does.The softwares, thus, whether they are cleared with the apparatus for which they are intended, viz, with the computer or not they remain classified under the same heading. By reason of the provisions of the Tariff Act, the rate of duties specified becomes part of a Parliamentary Act. Chapter Note 6 of Chapter 85 being the legal text must be taken aid of for the purpose of interpretation of the different headings in preference to the interpretation rules. Suffice it to point out that once no duty is payable on softwares being classified under 8524.20 being a magnetic tape, the recorders whereof is classified under 8520.00, a duty would not be payable only because the informations contained therein are loaded in the hardware.67. It is not in dispute that operational softwares are available in the market separately. They are separately marketable commodities. The essentially test or the functional test cannot be applied for the purpose of levy of central excise inasmuch as the tax is on manufacture of goods. The Act being a fiscal legislation an attempt must be made to read the provisions thereof reasonably. Computer comes within the definition of excisable goods. So is a software. They find place in different classifications. The rate of duty payable in relation to those two different goods is also different.68. In terms of Chapter Note 6 of Chapter 85, as noticed hereinbefore, a software retains its character irrespective of the fact as to whether it is sold with the apparatus, viz. the computer. Once it is held that the essential characteristic of a software is not lost by reason of its being loaded in the hardware; having regard to the different sub-heading contained in different chapters of the Tariff Act, the intent and purport of the legislature, in our opinion, cannot be permitted to be withered away only because the informations contained in a software are loaded in a hardware. In other words, as the central excise duty is not leviable on a software in terms of the Act, only because it is implanted in a hardware which can be subjected to the assessment of central excise under different head, the same would not attract central excise duty.Computer and operative softwares are different marketable commodities. They are available in the market separately. They are classified differently. The rate of excise duty for computer is 16% whereas that of a software is nil. Accessories of a machine promote the convenience and better utilization of the machine but nevertheless they are not machine itself. The computer and software are distinct and separate, both as a matter of commercial parlance as also under the statute. Although a computer may not be capable of effective functioning unless loaded with softwares, the same would not tantamount to bringing them within the purview of the part of the computer so as to hold that if they are sold along with the computer their value must form part of the assessable value thereof for the purpose of excise duty. Both computer and software must be classified having fallen under 84.71 and 85.24 and must be subject to corresponding rates of duties separately. The informations contains in a software although are loaded in the hard, disc, the operational software does not lose its value and is still marketable as a separate commodity. It does not lose its character as a tangible goods being of the nature of CD-ROM. A licence to use the information contained in a software can be given irrespective of the fact as to whether they are loaded in the computer or not. The fact that the manufacturers put different prices for the computers loaded with different types of operational softwares whether separately or not would not make any difference as regard nature and character of the computer. Even if the Appellants in terms of the provisions of a licence were obliged to preload a software on the computer before clearing the same from the factory, the characteristic of the software cannot be said to have transformed into a hardware so as to make it subject to levy of excise duty along with computer while it is not under the Tariff Act.84. In other words, computers, and softwares are different and distinct goods under the said Act having been classified differently and in that view of the matter, no central excise duty would be leviable upon determination of the value thereof by taking the total value of the computer and software. So far as, the valuation of goods in terms of transaction value thereof, as defined in Section 4(3)(d) of the Act is concerned, suffice it to say that the said provision would be subject to the charging provisions contained in Section 3 of the Act as also Sub-section (1) of Section 4. The expressions "by reason of sale" or "in connection with the sale contained in the definition of transaction value refer to such goods which is excisable to excise duty and not the one which is not so excisable. Section 3 of the Act being the charging section, the definition of transaction value must be read in the text and context thereof and not dehors the same. The legal text contained in Chapter 84, as explained in Chapter Note 6, clearly states that a software, even if contained in a hardware, does not lose its character as such. When an exemption has been granted from levy of any excise duty on software whether it is operating software or application software in terms of heading 85.24, no excise duty can be levied thereupon indirectly, as it was impermissible to levy a tax indirectly. In that view of the matter the decision in PSI Data Systems (supra) must be held to have correctly been rendered.85. We, however, place on record that we have not applied our mind as regard the larger question as to whether the informations contained in a software would be tangible personal property or not or whether preparation of such software would amount to manufacture under different statues. | 0 | 9,269 | 1,926 | ### Instruction:
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actually removed from the appellants factory fitted with accessories. Therefore, the composite value thereof was the excisable value of the ball bearings. The Tribunal upheld the contention of the Revenue on the basis that (i) the entire article was cleared as ball bearings; (ii) in the price list, invoices and catalogue the assessee had quoted the item as ball bearings and the price for the entire article was stated and (iii) no separate price was quoted for accessories and the ball bearings.3. It is not the case of the Revenue that the snap rings, sleeve lock devices, etc. are parts of ball bearings. It is the Revenues case that these are accessories but they were fitted to the ball bearings when the ball bearing were removed from the appellants factory. The Tariff Entry at the relevant time (No. 49) read, Rolling bearings, that is to say, ball or roller bearings, all sorts". Clearly, what fell under this entry were the ball bearings and not what, admittedly, are the accessories thereof. Accordingly, the conclusion of the Tribunal on this issue must be set aside." 81. Once it is that the computer is complete without the operating softwares, the question of adding the cost of software therewith would not arise since what is under assessment is only the computer. To the same effect is the judgment in Photopone Industries Pvt. Ltd. vs. CCE, Goa, (1999 (108) ELT 523). 82. In Philips India Ltd. vs. Collector of Central Excise, Pune (1997) 6 SCC 31 ), this Court upon noticing the terms and conditions between the manufacturer and their dealers stating the same to be one as between principal and principal observed that making a deduction on this account was uncalled for as the advertisement which the dealer was required to make at its own cost benefited in equal degree the Appellant and the dealer. Similarly, with regard to after-scales service, it was held that the same benefited not only the manufacturer but also the dealer. It was observed: "7. We think that in adjudicating matters such as this, the Excise authorities would do well to keep in mind legitimate business considerations". Conclusion: 83. Computer and operative softwares are different marketable commodities. They are available in the market separately. They are classified differently. The rate of excise duty for computer is 16% whereas that of a software is nil. Accessories of a machine promote the convenience and better utilization of the machine but nevertheless they are not machine itself. The computer and software are distinct and separate, both as a matter of commercial parlance as also under the statute. Although a computer may not be capable of effective functioning unless loaded with softwares, the same would not tantamount to bringing them within the purview of the part of the computer so as to hold that if they are sold along with the computer their value must form part of the assessable value thereof for the purpose of excise duty. Both computer and software must be classified having fallen under 84.71 and 85.24 and must be subject to corresponding rates of duties separately. The informations contains in a software although are loaded in the hard, disc, the operational software does not lose its value and is still marketable as a separate commodity. It does not lose its character as a tangible goods being of the nature of CD-ROM. A licence to use the information contained in a software can be given irrespective of the fact as to whether they are loaded in the computer or not. The fact that the manufacturers put different prices for the computers loaded with different types of operational softwares whether separately or not would not make any difference as regard nature and character of the computer. Even if the Appellants in terms of the provisions of a licence were obliged to preload a software on the computer before clearing the same from the factory, the characteristic of the software cannot be said to have transformed into a hardware so as to make it subject to levy of excise duty along with computer while it is not under the Tariff Act.84. In other words, computers, and softwares are different and distinct goods under the said Act having been classified differently and in that view of the matter, no central excise duty would be leviable upon determination of the value thereof by taking the total value of the computer and software. So far as, the valuation of goods in terms of transaction value thereof, as defined in Section 4(3)(d) of the Act is concerned, suffice it to say that the said provision would be subject to the charging provisions contained in Section 3 of the Act as also Sub-section (1) of Section 4. The expressions "by reason of sale" or "in connection with the sale contained in the definition of transaction value refer to such goods which is excisable to excise duty and not the one which is not so excisable. Section 3 of the Act being the charging section, the definition of transaction value must be read in the text and context thereof and not dehors the same. The legal text contained in Chapter 84, as explained in Chapter Note 6, clearly states that a software, even if contained in a hardware, does not lose its character as such. When an exemption has been granted from levy of any excise duty on software whether it is operating software or application software in terms of heading 85.24, no excise duty can be levied thereupon indirectly, as it was impermissible to levy a tax indirectly. In that view of the matter the decision in PSI Data Systems (supra) must be held to have correctly been rendered.85. We, however, place on record that we have not applied our mind as regard the larger question as to whether the informations contained in a software would be tangible personal property or not or whether preparation of such software would amount to manufacture under different statues. 86
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are cleared with the apparatus for which they are intended, viz, with the computer or not they remain classified under the same heading. By reason of the provisions of the Tariff Act, the rate of duties specified becomes part of a Parliamentary Act. Chapter Note 6 of Chapter 85 being the legal text must be taken aid of for the purpose of interpretation of the different headings in preference to the interpretation rules. Suffice it to point out that once no duty is payable on softwares being classified under 8524.20 being a magnetic tape, the recorders whereof is classified under 8520.00, a duty would not be payable only because the informations contained therein are loaded in the hardware.67. It is not in dispute that operational softwares are available in the market separately. They are separately marketable commodities. The essentially test or the functional test cannot be applied for the purpose of levy of central excise inasmuch as the tax is on manufacture of goods. The Act being a fiscal legislation an attempt must be made to read the provisions thereof reasonably. Computer comes within the definition of excisable goods. So is a software. They find place in different classifications. The rate of duty payable in relation to those two different goods is also different.68. In terms of Chapter Note 6 of Chapter 85, as noticed hereinbefore, a software retains its character irrespective of the fact as to whether it is sold with the apparatus, viz. the computer. Once it is held that the essential characteristic of a software is not lost by reason of its being loaded in the hardware; having regard to the different sub-heading contained in different chapters of the Tariff Act, the intent and purport of the legislature, in our opinion, cannot be permitted to be withered away only because the informations contained in a software are loaded in a hardware. In other words, as the central excise duty is not leviable on a software in terms of the Act, only because it is implanted in a hardware which can be subjected to the assessment of central excise under different head, the same would not attract central excise duty.Computer and operative softwares are different marketable commodities. They are available in the market separately. They are classified differently. The rate of excise duty for computer is 16% whereas that of a software is nil. Accessories of a machine promote the convenience and better utilization of the machine but nevertheless they are not machine itself. The computer and software are distinct and separate, both as a matter of commercial parlance as also under the statute. Although a computer may not be capable of effective functioning unless loaded with softwares, the same would not tantamount to bringing them within the purview of the part of the computer so as to hold that if they are sold along with the computer their value must form part of the assessable value thereof for the purpose of excise duty. Both computer and software must be classified having fallen under 84.71 and 85.24 and must be subject to corresponding rates of duties separately. The informations contains in a software although are loaded in the hard, disc, the operational software does not lose its value and is still marketable as a separate commodity. It does not lose its character as a tangible goods being of the nature of CD-ROM. A licence to use the information contained in a software can be given irrespective of the fact as to whether they are loaded in the computer or not. The fact that the manufacturers put different prices for the computers loaded with different types of operational softwares whether separately or not would not make any difference as regard nature and character of the computer. Even if the Appellants in terms of the provisions of a licence were obliged to preload a software on the computer before clearing the same from the factory, the characteristic of the software cannot be said to have transformed into a hardware so as to make it subject to levy of excise duty along with computer while it is not under the Tariff Act.84. In other words, computers, and softwares are different and distinct goods under the said Act having been classified differently and in that view of the matter, no central excise duty would be leviable upon determination of the value thereof by taking the total value of the computer and software. So far as, the valuation of goods in terms of transaction value thereof, as defined in Section 4(3)(d) of the Act is concerned, suffice it to say that the said provision would be subject to the charging provisions contained in Section 3 of the Act as also Sub-section (1) of Section 4. The expressions "by reason of sale" or "in connection with the sale contained in the definition of transaction value refer to such goods which is excisable to excise duty and not the one which is not so excisable. Section 3 of the Act being the charging section, the definition of transaction value must be read in the text and context thereof and not dehors the same. The legal text contained in Chapter 84, as explained in Chapter Note 6, clearly states that a software, even if contained in a hardware, does not lose its character as such. When an exemption has been granted from levy of any excise duty on software whether it is operating software or application software in terms of heading 85.24, no excise duty can be levied thereupon indirectly, as it was impermissible to levy a tax indirectly. In that view of the matter the decision in PSI Data Systems (supra) must be held to have correctly been rendered.85. We, however, place on record that we have not applied our mind as regard the larger question as to whether the informations contained in a software would be tangible personal property or not or whether preparation of such software would amount to manufacture under different statues.
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GENPACT INDIA PRIVATE LIMITED Vs. DEPUTY COMMISSIONER OF INCOME TAX | GKN Driveshafts (India) Ltd. v. ITO (2003) 1 SCC 72 ] … 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case AIR 1964 SC 1419 , Titaghur Paper Mills case 4 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. Recently, in Authorised Officer, State Bank of Travancore & Anr. v. Mathew K.C. (2018) 3 SCC 85 , the principles laid down in Chhabil Dass Agarwal 2 were reiterated as under: The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal 2 … 16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in Section 115QA were initially confined only to those covered by Section 77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was still at large. In State of U.P . v. U.P . Rajya Khanij Vikas Nigam Sangharsh Samiti and others (2008) 12 SCC 675 this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under: 38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari AIR 1992 All 331 (Suresh Chandra Tewari vs. District Supply Officer) that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that petition cannot be rejected on the ground of availability of alternative remedy of filing appeal . But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) 2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed. (emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner. 17. We do not, therefore, find any error in the approach of and conclusion arrived at by the High Court. It is relevant to mention that the concessions given on behalf of the Revenue as recorded in the directions issued by the High Court also take care of matters of prejudice, if any. Consequently, the appellant, as a matter of fact, will have a fuller, adequate and efficacious remedy by way of appeal before the appellate authority. 18. Certain issues raised during the course of hearing touching upon the aspects whether the appellant is liable under Section 115QA of the Act or whether the transaction of buy back of shares in the present matter would come within the statutory contours of said Section 115QA or not, are issues which will be gone into at the appropriate stages by the concerned authorities; and as such we have refrained from dealing with those issues. | 0[ds]There is no reason why the scope of the such expression be restricted and confined to issues arising out of or touching upon assessment proceedings either under Section 143 or Section 144 of the Act13. If the submission of the appellant is accepted and the concerned expression as stated hereinabove in Section 246(1)(a) or in Section 246A(1)(a) is to be considered as relatable to the liability of an assessee to be assessed under Section 143(3) as contended, there would be no appellate remedy in case of any determination under Section 115QA. The issues may arise not just confined to the question whether the company is liable at all but may also relate to other facets including the extent of liability and also with regard to computation. If the submission is accepted, every time the dispute will be required to be taken up in proceedings such as a petition under Article 226 of the Constitution, which normally would not be entertained in case of any disputed questions of fact or concerning factual aspects of the matter. The assessee may thus, not only lose a remedy of having the matter considered on factual facets of the matter but would also stand deprived of regular channels of challenges available to it under the hierarchy of fora available under the Act14. We, therefore, reject the submissions advanced by the appellant and hold that an appeal would be maintainable against the determination of liability under Section 115QA of the Act16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in Section 115QA were initially confined only to those covered by Section 77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was still at large17. We do not, therefore, find any error in the approach of and conclusion arrived at by the High Court. It is relevant to mention that the concessions given on behalf of the Revenue as recorded in the directions issued by the High Court also take care of matters of prejudice, if any. Consequently, the appellant, as a matter of fact, will have a fuller, adequate and efficacious remedy by way of appeal before the appellate authority18. Certain issues raised during the course of hearing touching upon the aspects whether the appellant is liable under Section 115QA of the Act or whether the transaction of buy back of shares in the present matter would come within the statutory contours of said Section 115QA or not, are issues which will be gone into at the appropriate stages by the concerned authorities; and as such we have refrained from dealing with those issues. | 0 | 8,004 | 589 | ### Instruction:
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GKN Driveshafts (India) Ltd. v. ITO (2003) 1 SCC 72 ] … 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case AIR 1964 SC 1419 , Titaghur Paper Mills case 4 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. Recently, in Authorised Officer, State Bank of Travancore & Anr. v. Mathew K.C. (2018) 3 SCC 85 , the principles laid down in Chhabil Dass Agarwal 2 were reiterated as under: The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal 2 … 16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in Section 115QA were initially confined only to those covered by Section 77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was still at large. In State of U.P . v. U.P . Rajya Khanij Vikas Nigam Sangharsh Samiti and others (2008) 12 SCC 675 this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under: 38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari AIR 1992 All 331 (Suresh Chandra Tewari vs. District Supply Officer) that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that petition cannot be rejected on the ground of availability of alternative remedy of filing appeal . But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) 2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed. (emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner. 17. We do not, therefore, find any error in the approach of and conclusion arrived at by the High Court. It is relevant to mention that the concessions given on behalf of the Revenue as recorded in the directions issued by the High Court also take care of matters of prejudice, if any. Consequently, the appellant, as a matter of fact, will have a fuller, adequate and efficacious remedy by way of appeal before the appellate authority. 18. Certain issues raised during the course of hearing touching upon the aspects whether the appellant is liable under Section 115QA of the Act or whether the transaction of buy back of shares in the present matter would come within the statutory contours of said Section 115QA or not, are issues which will be gone into at the appropriate stages by the concerned authorities; and as such we have refrained from dealing with those issues.
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There is no reason why the scope of the such expression be restricted and confined to issues arising out of or touching upon assessment proceedings either under Section 143 or Section 144 of the Act13. If the submission of the appellant is accepted and the concerned expression as stated hereinabove in Section 246(1)(a) or in Section 246A(1)(a) is to be considered as relatable to the liability of an assessee to be assessed under Section 143(3) as contended, there would be no appellate remedy in case of any determination under Section 115QA. The issues may arise not just confined to the question whether the company is liable at all but may also relate to other facets including the extent of liability and also with regard to computation. If the submission is accepted, every time the dispute will be required to be taken up in proceedings such as a petition under Article 226 of the Constitution, which normally would not be entertained in case of any disputed questions of fact or concerning factual aspects of the matter. The assessee may thus, not only lose a remedy of having the matter considered on factual facets of the matter but would also stand deprived of regular channels of challenges available to it under the hierarchy of fora available under the Act14. We, therefore, reject the submissions advanced by the appellant and hold that an appeal would be maintainable against the determination of liability under Section 115QA of the Act16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in Section 115QA were initially confined only to those covered by Section 77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was still at large17. We do not, therefore, find any error in the approach of and conclusion arrived at by the High Court. It is relevant to mention that the concessions given on behalf of the Revenue as recorded in the directions issued by the High Court also take care of matters of prejudice, if any. Consequently, the appellant, as a matter of fact, will have a fuller, adequate and efficacious remedy by way of appeal before the appellate authority18. Certain issues raised during the course of hearing touching upon the aspects whether the appellant is liable under Section 115QA of the Act or whether the transaction of buy back of shares in the present matter would come within the statutory contours of said Section 115QA or not, are issues which will be gone into at the appropriate stages by the concerned authorities; and as such we have refrained from dealing with those issues.
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Commissioner Of Wealth Tax, West Bengal Vs. Champa Kumari Singhi & Ors | that the person who had ceased to be a Hindu in religion and had become a Christian could not elect to be bound by the Hindu Law in the matter of succession after the passing of the Indian Succession Act and that a Hindu convert to Christianity was solely governed by that Act. In other words, according to the Privy Council a person who had ceased to be a Hindu by religion was not Hindu within the meaning of Section 331 of the aforesaid Act. It was held in Bachebi v. Makhan Lal, (1881) ILR 3 All 55 that the term Hindu in Section 331 of the Indian Succession Act 1865 included a Jain and consequently in matters of succession Jains were not governed by that Act. It was pointed out that the ordinary Hindu law of Inheritance was to be applied to Jains in the absence of proof of custom or usage varying that law. The Privy Council in Rani Bhagwan Kuer v. J. C. Bose, (1904) ILR 31 Cal 11 (PC) expressed the view that a Sikh was a Hindu within the meaning of that term as used in Section 2 of the Probate and Administration Act 1881. It was pointed out that the Courts had always acted upon the premise that Sikhs were Hindus and that Hindu Law applied to them in the same way as it applied to Jains in the absence of custom varying that Law. It was observed:"It appears to their Lordships to be clear that in Section 331 the term Hindu is used in the same wide sense as in earlier enactments, and includes Sikhs. If it be not so, then Sikhs were, and are, in matters of inheritance, governed by the Succession Act, and Act based upon, and in the main embodying, the English law; and it could not be seriously suggested that such was the intention of the legislature". 11. In Ambabai Bhaichand v. Keshav Bandochand Gujar. ILR (1941)Bom. 250 = (AIR 1941 Bom 233 .) the question was whether Jains were governed by Hindu law of Inheritance (Amendment) Act 1929 which applied to all persons governed by Mitakshara as modified by the Mayukha. It was argued in that case that the Indian Succession (Amendment) Act of 1929 speaks of Jains as well as Hindus and Sections 4 and 57 of the Indian Succession Act 1925 also did the same . The court pointed out that section 331 of the Indian Succession Act 1865 did not make any separate mention of Jains and even then it had been held that the term Hindu included Jains. The Hindu Wills Act of 1870 which applied to the territories under the Lt. Governor of Bengal and the cities of Bombay and Madras no doubt mentioned Jains as well as Hindus being governed by certain sections of the Succession Act, 1865 and the Indian Succession Act, 1925 was a consolidating Act which repealed the previous Act of 1865 as well as the Hindu Wills Act of 1870. It was therefore probably thought necessary ex majore cautela to separately mention the Jains in the consolidating measure. However, in all the other enactments affecting the Hindu Law there was no separate mention of Jains along with the Hindus. The Jains were therefore, governed by the Hindu Law of Inheritance (Amendment) Act 1929. The mention of Jains separately in Article 25 of the Constitution was noticed in ILR (1954) Nag 30 = (AIR 1953 Nag 70) and it was observed that the framers of the constitution felt, having regard to the differences in the two faiths that an express mention might be made of all faiths ex abundant cautela and to put the matter beyond all controversy, and that faith is one thing and law is another and the Constitution could not be taken to have undone the long series of decisions on the subject. Before the amendment and codification of major branches of Hindu Law by the four statutes, i.e. the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoptions and Maintenance Act 1956, the undisputed position was that the Jains were governed by the Hindu law modified by custom and a Jain joint family was Hindu joint family with all the incidents attached to such a family under the Hindu law. The legislative practice also was to generally treat Jains as included in the term Hindu in various statutory enactments. Wherever Jains were mentioned in addition it was by way of abundant caution. The new statutes did not change the situation and it is not possible how the High Court in the judgment under appeal pressed them into service in support of its view. The fallacy underlying the reasoning of the High Court if that the artificial field of application of the law in those statutes shows that Jainism is not treated even as a form or a development of Hinduism. That is an erroneous approach. We are not concerned with the question whether Jains are a sect of Hindus or Hindu dissenters. Even if the religions are different, what is common is that all those who are to be governed by the provisions of these enactments are included in the term Hindu. They are to be governed by the same rules relating to marriage, succession, minority, guardianship, adoption and maintenance as Hindus. The statutes thus accord legislative recognition to the fact that even though Jains may not be Hindus by religion they are to be governed by the same laws as the Hindus. In this view of the matter the expression Hindu undivided family will certainly include the Jain undivided family. The latter class of family is not know to law. The Jains are governed by all the incidents relating to the Hindu joint family. Hindu undivided family is a legal expression which has been employed in taxation laws. It has a definite connotation and embodies the meaning ascribed to the expression Hindu joint family. | 1[ds]5. The main reasoning which prevailed with the High Court is that although Hindu law applies to Jains except in so far as such law is varied by custom, Jains do not become Hindus in the same way as Khojas and Cutchi Memons of Bombay and Sunni Borahs of Gujarat etc. cannot be regarded as Hindus although Hindu law applies to them in matters of inheritance and succession. Moreover, Hinduism does not include Hindu converts to Christianity and Islam and also dissenters from Hinduism who formed themselves into distinct communities or sects with peculiar religious usages so divergent from the principles of the Shastras that they could not be regarded as Hindus. Reliance was placed on the decision of the Mysore High Court in P. F. Pinto v. Commr. of Wealth Tax, Mysore, (1967) 65 ITR 123 (Mys). In that case the ancestors of the assessee were originally Hindus. They later on became converts to Christianity. It was found that although for the purposes of succession to property the Hindu law was still applicable to the family of the assessee, he could be assessed only as an individual for wealth tax purposes and could not be assessed in the status of a Hindu undivided family. The Mysore High Court was inclined to the view that the expression Hindu undivided family in S. 3 of the Act was limited to Mitakshra families or families of persons professing Hindu religion governed by Mitakshra law and thus it could not include a Christian undivided family although governed by Hindu law. The Calcutta High Court in the judgment under appeal, however, did not consider that the Mysore High Court was right in holding that S. 3 of the Act was limited only to Mitakshara families. It may be pointed out that so far as Income tax is concerned the expression Hindu undivided family has been held to have reference to all schools of Hindu law and not to one school only. (See Kalyanji Vithaldas v. Commr. of Income tax, Bengal, 64 Ind App 28 = (AIR 1937 PC 36 )"The term Hindu or Gentu, when used in Regulations Act, Statutes, and Charters in which Hindus or Gentus have been declared entitled to the benefit of their own law of succession and of contract, has been largely and liberally constructed. See the remarks at pages 184, 185, 186 (1868-69) 5 Bom HCR 172 (Lopes v. Lopes), where Sir Edward Hyde Easts evidence in 1830 before the House of Lords Committee is mentioned, in which he stated that Sikhs were treated as a sect of Hindus or Gentus of which they were a dissenting branch. The authorities, already quoted, show that Jainas are regarded as a sect of Hindus."Out of the decisions of the Privy Council, we may mention Sheokuarbai v. Jeoraj, AIR 1921 PC 77 in which their Lordships relied on the statement in Mynes Hindu law and Usage that Jains are of Hindu origin; they are Hindu dissenters and although "generally adhering to ordinary Hindu Law, that is, the law of the three superior castes, they recognise no divine authority in the Vedas and do not practice the Shradha or ceremonies for the dead"7. The above view has been challenged by Jain historians and writers and it has been maintained that the Jains are quite distinct from Hindus and have a separate code of law which unfortunately was not brought to the notice of the Courts. Kumaraswami Sastri, Officiating Chief Justice, delivering the judgment of the Bench in Bobbaladi Gatepa v. Bobbaladi Eramma, AIR 1972 Mad 228 elaborately discussed the contrary view and observed that if the matter were res integra he would be inclined to hold that modern research had shown that Jains were not Hindu dissenters but that Jainism had an origin and history long anterior to Smritis and commentaries which were recognised authorities of Hindu Law and usage10. We may next notice certain decisions in which the word Hindu as used in various statutes came to be interpreted by the Courts. In Kamawati v. Digbijai Singh, AIR 1922 PC 14, Section 331 of the Indian Succession Act 1865 has to be interpreted. According to that section the provisions of that Act were not to apply to intestate or testamentary succession to the property of any Hindu. It was held that the person who had ceased to be a Hindu in religion and had become a Christian could not elect to be bound by the Hindu Law in the matter of succession after the passing of the Indian Succession Act and that a Hindu convert to Christianity was solely governed by that Act. In other words, according to the Privy Council a person who had ceased to be a Hindu by religion was not Hindu within the meaning of Section 331 of the aforesaid Act. It was held in Bachebi v. Makhan Lal, (1881) ILR 3 All 55 that the term Hindu in Section 331 of the Indian Succession Act 1865 included a Jain and consequently in matters of succession Jains were not governed by that Act. It was pointed out that the ordinary Hindu law of Inheritance was to be applied to Jains in the absence of proof of custom or usage varying that law. The Privy Council in Rani Bhagwan Kuer v. J. C. Bose, (1904) ILR 31 Cal 11 (PC) expressed the view that a Sikh was a Hindu within the meaning of that term as used in Section 2 of the Probate and Administration Act 1881. It was pointed out that the Courts had always acted upon the premise that Sikhs were Hindus and that Hindu Law applied to them in the same way as it applied to Jains in the absence of custom varying that Law. It was observed:"It appears to their Lordships to be clear that in Section 331 the term Hindu is used in the same wide sense as in earlier enactments, and includes Sikhs. If it be not so, then Sikhs were, and are, in matters of inheritance, governed by the Succession Act, and Act based upon, and in the main embodying, the English law; and it could not be seriously suggested that such was the intention of the legislature"11. In Ambabai Bhaichand v. Keshav Bandochand Gujar. ILR (1941)Bom. 250 = (AIR 1941 Bom 233 .) the question was whether Jains were governed by Hindu law of Inheritance (Amendment) Act 1929 which applied to all persons governed by Mitakshara as modified by the Mayukha. It was argued in that case that the Indian Succession (Amendment) Act of 1929 speaks of Jains as well as Hindus and Sections 4 and 57 of the Indian Succession Act 1925 also did the same . The court pointed out that section 331 of the Indian Succession Act 1865 did not make any separate mention of Jains and even then it had been held that the term Hindu included Jains. The Hindu Wills Act of 1870 which applied to the territories under the Lt. Governor of Bengal and the cities of Bombay and Madras no doubt mentioned Jains as well as Hindus being governed by certain sections of the Succession Act, 1865 andthe Indian Succession Act, 1925 was a consolidating Act which repealed the previous Act of 1865 as well as the Hindu Wills Act of 1870. It was therefore probably thought necessary ex majore cautela to separately mention the Jains in the consolidating measure. However, in all the other enactments affecting the Hindu Law there was no separate mention of Jains along with the Hindus. The Jains were therefore, governed by the Hindu Law of Inheritance (Amendment) Act 1929. The mention of Jains separately in Article 25 of the Constitution was noticed in ILR (1954) Nag 30 = (AIR 1953 Nag 70) and it was observed that the framers of the constitution felt, having regard to the differences in the two faiths that an express mention might be made of all faiths ex abundant cautela and to put the matter beyond all controversy, and that faith is one thing and law is another and the Constitution could not be taken to have undone the long series of decisions on the subject. Before the amendment and codification of major branches of Hindu Law by the four statutes, i.e. the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoptions and Maintenance Act 1956, the undisputed position was that the Jains were governed by the Hindu law modified by custom and a Jain joint family was Hindu joint family with all the incidents attached to such a family under the Hindu law. The legislative practice also was to generally treat Jains as included in the term Hindu in various statutory enactments. Wherever Jains were mentioned in addition it was by way of abundant caution. The new statutes did not change the situation and it is not possible how the High Court in the judgment under appeal pressed them into service in support of its view. The fallacy underlying the reasoning of the High Court if that the artificial field of application of the law in those statutes shows that Jainism is not treated even as a form or a development of Hinduism. That is an erroneous approach. We are not concerned with the question whether Jains are a sect of Hindus or Hindu dissenters. Even if the religions are different, what is common is that all those who are to be governed by the provisions of these enactments are included in the term Hindu. They are to be governed by the same rules relating to marriage, succession, minority, guardianship, adoption and maintenance as Hindus. The statutes thus accord legislative recognition to the fact that even though Jains may not be Hindus by religion they are to be governed by the same laws as the Hindus. In this view of the matter the expression Hindu undivided family will certainly include the Jain undivided family. The latter class of family is not know to lawThe Jains are governed by all the incidents relating to the Hindu joint family. Hindu undivided family is a legal expression which has been employed in taxation laws. It has a definite connotation and embodies the meaning ascribed to the expression Hindu joint family. | 1 | 4,235 | 1,876 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
that the person who had ceased to be a Hindu in religion and had become a Christian could not elect to be bound by the Hindu Law in the matter of succession after the passing of the Indian Succession Act and that a Hindu convert to Christianity was solely governed by that Act. In other words, according to the Privy Council a person who had ceased to be a Hindu by religion was not Hindu within the meaning of Section 331 of the aforesaid Act. It was held in Bachebi v. Makhan Lal, (1881) ILR 3 All 55 that the term Hindu in Section 331 of the Indian Succession Act 1865 included a Jain and consequently in matters of succession Jains were not governed by that Act. It was pointed out that the ordinary Hindu law of Inheritance was to be applied to Jains in the absence of proof of custom or usage varying that law. The Privy Council in Rani Bhagwan Kuer v. J. C. Bose, (1904) ILR 31 Cal 11 (PC) expressed the view that a Sikh was a Hindu within the meaning of that term as used in Section 2 of the Probate and Administration Act 1881. It was pointed out that the Courts had always acted upon the premise that Sikhs were Hindus and that Hindu Law applied to them in the same way as it applied to Jains in the absence of custom varying that Law. It was observed:"It appears to their Lordships to be clear that in Section 331 the term Hindu is used in the same wide sense as in earlier enactments, and includes Sikhs. If it be not so, then Sikhs were, and are, in matters of inheritance, governed by the Succession Act, and Act based upon, and in the main embodying, the English law; and it could not be seriously suggested that such was the intention of the legislature". 11. In Ambabai Bhaichand v. Keshav Bandochand Gujar. ILR (1941)Bom. 250 = (AIR 1941 Bom 233 .) the question was whether Jains were governed by Hindu law of Inheritance (Amendment) Act 1929 which applied to all persons governed by Mitakshara as modified by the Mayukha. It was argued in that case that the Indian Succession (Amendment) Act of 1929 speaks of Jains as well as Hindus and Sections 4 and 57 of the Indian Succession Act 1925 also did the same . The court pointed out that section 331 of the Indian Succession Act 1865 did not make any separate mention of Jains and even then it had been held that the term Hindu included Jains. The Hindu Wills Act of 1870 which applied to the territories under the Lt. Governor of Bengal and the cities of Bombay and Madras no doubt mentioned Jains as well as Hindus being governed by certain sections of the Succession Act, 1865 and the Indian Succession Act, 1925 was a consolidating Act which repealed the previous Act of 1865 as well as the Hindu Wills Act of 1870. It was therefore probably thought necessary ex majore cautela to separately mention the Jains in the consolidating measure. However, in all the other enactments affecting the Hindu Law there was no separate mention of Jains along with the Hindus. The Jains were therefore, governed by the Hindu Law of Inheritance (Amendment) Act 1929. The mention of Jains separately in Article 25 of the Constitution was noticed in ILR (1954) Nag 30 = (AIR 1953 Nag 70) and it was observed that the framers of the constitution felt, having regard to the differences in the two faiths that an express mention might be made of all faiths ex abundant cautela and to put the matter beyond all controversy, and that faith is one thing and law is another and the Constitution could not be taken to have undone the long series of decisions on the subject. Before the amendment and codification of major branches of Hindu Law by the four statutes, i.e. the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoptions and Maintenance Act 1956, the undisputed position was that the Jains were governed by the Hindu law modified by custom and a Jain joint family was Hindu joint family with all the incidents attached to such a family under the Hindu law. The legislative practice also was to generally treat Jains as included in the term Hindu in various statutory enactments. Wherever Jains were mentioned in addition it was by way of abundant caution. The new statutes did not change the situation and it is not possible how the High Court in the judgment under appeal pressed them into service in support of its view. The fallacy underlying the reasoning of the High Court if that the artificial field of application of the law in those statutes shows that Jainism is not treated even as a form or a development of Hinduism. That is an erroneous approach. We are not concerned with the question whether Jains are a sect of Hindus or Hindu dissenters. Even if the religions are different, what is common is that all those who are to be governed by the provisions of these enactments are included in the term Hindu. They are to be governed by the same rules relating to marriage, succession, minority, guardianship, adoption and maintenance as Hindus. The statutes thus accord legislative recognition to the fact that even though Jains may not be Hindus by religion they are to be governed by the same laws as the Hindus. In this view of the matter the expression Hindu undivided family will certainly include the Jain undivided family. The latter class of family is not know to law. The Jains are governed by all the incidents relating to the Hindu joint family. Hindu undivided family is a legal expression which has been employed in taxation laws. It has a definite connotation and embodies the meaning ascribed to the expression Hindu joint family.
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1
### Explanation:
that the person who had ceased to be a Hindu in religion and had become a Christian could not elect to be bound by the Hindu Law in the matter of succession after the passing of the Indian Succession Act and that a Hindu convert to Christianity was solely governed by that Act. In other words, according to the Privy Council a person who had ceased to be a Hindu by religion was not Hindu within the meaning of Section 331 of the aforesaid Act. It was held in Bachebi v. Makhan Lal, (1881) ILR 3 All 55 that the term Hindu in Section 331 of the Indian Succession Act 1865 included a Jain and consequently in matters of succession Jains were not governed by that Act. It was pointed out that the ordinary Hindu law of Inheritance was to be applied to Jains in the absence of proof of custom or usage varying that law. The Privy Council in Rani Bhagwan Kuer v. J. C. Bose, (1904) ILR 31 Cal 11 (PC) expressed the view that a Sikh was a Hindu within the meaning of that term as used in Section 2 of the Probate and Administration Act 1881. It was pointed out that the Courts had always acted upon the premise that Sikhs were Hindus and that Hindu Law applied to them in the same way as it applied to Jains in the absence of custom varying that Law. It was observed:"It appears to their Lordships to be clear that in Section 331 the term Hindu is used in the same wide sense as in earlier enactments, and includes Sikhs. If it be not so, then Sikhs were, and are, in matters of inheritance, governed by the Succession Act, and Act based upon, and in the main embodying, the English law; and it could not be seriously suggested that such was the intention of the legislature"11. In Ambabai Bhaichand v. Keshav Bandochand Gujar. ILR (1941)Bom. 250 = (AIR 1941 Bom 233 .) the question was whether Jains were governed by Hindu law of Inheritance (Amendment) Act 1929 which applied to all persons governed by Mitakshara as modified by the Mayukha. It was argued in that case that the Indian Succession (Amendment) Act of 1929 speaks of Jains as well as Hindus and Sections 4 and 57 of the Indian Succession Act 1925 also did the same . The court pointed out that section 331 of the Indian Succession Act 1865 did not make any separate mention of Jains and even then it had been held that the term Hindu included Jains. The Hindu Wills Act of 1870 which applied to the territories under the Lt. Governor of Bengal and the cities of Bombay and Madras no doubt mentioned Jains as well as Hindus being governed by certain sections of the Succession Act, 1865 andthe Indian Succession Act, 1925 was a consolidating Act which repealed the previous Act of 1865 as well as the Hindu Wills Act of 1870. It was therefore probably thought necessary ex majore cautela to separately mention the Jains in the consolidating measure. However, in all the other enactments affecting the Hindu Law there was no separate mention of Jains along with the Hindus. The Jains were therefore, governed by the Hindu Law of Inheritance (Amendment) Act 1929. The mention of Jains separately in Article 25 of the Constitution was noticed in ILR (1954) Nag 30 = (AIR 1953 Nag 70) and it was observed that the framers of the constitution felt, having regard to the differences in the two faiths that an express mention might be made of all faiths ex abundant cautela and to put the matter beyond all controversy, and that faith is one thing and law is another and the Constitution could not be taken to have undone the long series of decisions on the subject. Before the amendment and codification of major branches of Hindu Law by the four statutes, i.e. the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoptions and Maintenance Act 1956, the undisputed position was that the Jains were governed by the Hindu law modified by custom and a Jain joint family was Hindu joint family with all the incidents attached to such a family under the Hindu law. The legislative practice also was to generally treat Jains as included in the term Hindu in various statutory enactments. Wherever Jains were mentioned in addition it was by way of abundant caution. The new statutes did not change the situation and it is not possible how the High Court in the judgment under appeal pressed them into service in support of its view. The fallacy underlying the reasoning of the High Court if that the artificial field of application of the law in those statutes shows that Jainism is not treated even as a form or a development of Hinduism. That is an erroneous approach. We are not concerned with the question whether Jains are a sect of Hindus or Hindu dissenters. Even if the religions are different, what is common is that all those who are to be governed by the provisions of these enactments are included in the term Hindu. They are to be governed by the same rules relating to marriage, succession, minority, guardianship, adoption and maintenance as Hindus. The statutes thus accord legislative recognition to the fact that even though Jains may not be Hindus by religion they are to be governed by the same laws as the Hindus. In this view of the matter the expression Hindu undivided family will certainly include the Jain undivided family. The latter class of family is not know to lawThe Jains are governed by all the incidents relating to the Hindu joint family. Hindu undivided family is a legal expression which has been employed in taxation laws. It has a definite connotation and embodies the meaning ascribed to the expression Hindu joint family.
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Sayed Mohomed Baquir El-Edroos (Dead) By Lrs Vs. State of Gujarat | section 4 of the said Act enables the person aggrieved by the decision of the authorised officer to go up in appeal to the State Government within sixty days from the date of the decision. The High Court also referred to section 20 of the 1969 Act which specifically bars the jurisdiction of the Civil Court. It reads:"20. No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with, by the officer authorised under the proviso to sub section (I) of section 4 or section 25 or the Collector, the Gujarat Revenue Tribunal in appeal, or the State Government in appeal or revision or in exercise of their power of control."10. On the basis of the provisions of the 1969 Act the High Court came to the conclusion that Explanation 1 to section 2 (1) (e) of the 1952 Act and section 20 or the 1969 Act put beyond the pale of any doubt that the jurisdiction of the Civil Court had been taken away by the legislature to determine the question whether a particular inam is a personal or a devasthan inam.11. We are concerned in the present case with the provisions of the 1952 Act. There is no corresponding provision like section 20 of the 1969 Act in the 1952 Act nor is there any detailed procedure of appeal and revision in that Act as contemplated by the 1969 Act. The High Court in our opinion was not justified in invoking the provisions of the 1969 Act while deciding the case under the 1952 Act.12. The counsel for the State of Gujarat on the other hand referred to the definition of personal inam as given in section 2 (1) (e) of the 1952 Act and according to the learned counsel the inam in question is a personal inam in view of the definition itself which says:Personal inam means a grant of a village, portion of a village, land or total partial exemption from the payment of land revenue entered as personal inam in the alienation register kept under section 53 of the Code."So, entry of the nature of the inam in the alienation register is a decisive factor. In the instant case the inam in question has been entered as personal inam in the alienation register. Therefore, perforce it has to be taken as a personal inam and the plaintiff cannot escape the definition of the expression personal inam as given in section 2 (1) (e). Likewise, for a devasthan inam also it is necessary to be so entered in the alienation register kept under section 53 of the Code in view of Explanation to section 3 of the 1952 Act. The counsel for the appellant on the other hand referred to Explanation I to section 2 (1) (e) of the 1952 Act which indicates that the entry in the register is not an essential part of the definition of the personal inam but it is only descriptive. If the Government decides the case contrary to the entry in the alienation register, the alienation register shall be deemed to have been amended accordingly. This part of the Explanation takes away the rigour of the entry in the alienation register. If the entry in the alienation register will be deemed to have been automatically amended by the decision of the Government on the question whether it is a personal inam or a devasthan inam there is no sanctity attached to such entry which is mainly intended to serve the purpose of realisation of land revenue. The entry cannot be said to be s o sacrosanct that it cannot be changed. Indeed the explanation itself contemplates a change in view of the decision of the Government on the question.It was next contended for the State that the Revenue Court alone has exclusive jurisdiction to correct the entries in the revenue records and the counsel referred to section 53 of the Bombay Land Revenue Code. It reads:"53. A Register shall be kept by the Collector in such form as may from time to time be pre scribed by the State Government of all lands, the alienation of which has been established or recognized under the provisions of any law for the time being in force; and when it shall be shown to the satisfaction of the Collect or that any sanad granted in relation to any such alienated lands has been permanently lost or destroyed, he may, subject to the rules and the payment of the fees prescribed by the State Government under section 213, grant to any person whom he may deem entitled to the same a certified extract from the said Register, which shall be endorsed by the Collector to the effect that it has been issued in lieu of the sanad said to have been lost or destroyed, and shall be deemed to be as valid a proof of title as the said sanad."13. Section 203 of the said Code provides for appeal from any order passed by the Revenue officer to his superior and on the strength of these provisions it is sought to be argued that the plaintiff could have gone up in appeal against the decision of the officer under section 53 of the Code and the jurisdiction of the Civil Court is completely barred. If we refer to section 212 of the Code, the argument of the counsel for the State cannot be accepted. Section 212 con- templates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. If this is what finality means under section 212 it cannot be argued with any force on behalf of the State that the jurisdiction of the Civil Court is barred.For the foregoing discussion the decision of the Full Bench of the High Court cannot be sustained. | 1[ds]In order to appreciate the contentions, of the counsel of the parties on the question of jurisdiction, it will be appropriate to refer to the relevant provisions of the 1952 Act Section 2 (1) (e) defines personal inams. Insofar as it is material, itthere is no specific bar under the 1952 Act. No provision has been brought to our notice specifically excluding t he jurisdiction of the Civilonly bar is provided by Explanation I to section 2 (1) (e). Explanation r provides that if any question arises whether any grant is personal inam, such question shall be referred to the State Government and the decision of the State Government shall be final. Whether Explanation I to section 2 (1) (e) excludes the jurisdiction of the Civil Court by necessary implication is the question for consideration. The finality of the decision of the State Government contemplated by the explanation, says the learned counsel, is only for the purpose of the Act, namely, the 1952 Act, and this finality cannot stand in the way of the Civil Court to entertain the suit. In support of his contention the learned counse has strongly relied upon two decisions: Secretary of State, Represented by the Collector n of South Arcot v. Ma sk and Company, (1) and Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr.(2) In the first case the Privy Council dealing with the jurisdiction of the Civil Court observed as follows (at pageis settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.In Dulabhais case (supra) Hidayatullah C.J., speaking for the Court, on an analysis of the various decisions cited before the Court expressing diverse views, laid down the followingWhere the statute gives a finality to the orders of the special tribunals the Civil Courts jurisdiction must he held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. A Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.Where there is no express exclusion the examination of the remedies and the scheme or the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute orChallenge to the provisions of the particular Act as ultra views cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of Certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.If we consider the present case, in the light of the principles laid down by the Supreme Court in the above noted case, in our opinion the finality of the decision of the Government as contemplated by Explanation I to section 2 (1) (e) cannot exclude the jurisdiction of the Civil Court. Except for the Explanation, there is no other provision in the Act touching upon the jurisdiction of the Civil Court and none has been referred to before us by either party. The Act does not give any details about the reference to and the enquiry by the Government. No appeal has been provided for and it cannot be said that the case of the plaintiff has been considered by the Government in the same way as it would have been considered if the case had been filed before a Civil Court.The very first principle laid down in the case of Dhulabhai postulates that where a statute gives a finality to the orders of the special tribunal the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. From a perusal of the provisions of the Act it cannot be said that there is adequate remedy available to the plaintiffs on reference made to the Government. Even according p to the second principle laid down by the Supreme Court where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find out the adequacy or the sufficiency of the remedies provided may be relevant. The Act does not give any details about the reference to be made to the Government, the procedure to be followed by the Government, the opportunity to be afforded to the aggrieved party. In the absence of any such details in the Act it is not possible to hold that the use of the expression finality of the decision of the Government in Explanation I to section 2 (1) (e) of the 1952 Act was meant to bar the jurisdiction of the Civil Court.9. The High Court in our opinion has committed a manifest error in travelling beyond the 1952 Act and referring to the provisions of the 1969 Act. The High Court referred to section 4 of the 1969 Act, which exclusively vests the power to decide whether any village, portion of a village, or land is held in devasthan inam , in the authorised officer, and the State Government is empowered to authorise any officer under the proviso to section 4 (l) to decide questions arising under clauses (a) (b) or (c) of section 4. Subsection (2) of section 4 of the said Act enables the person aggrieved by the decision of the authorised officer to go up in appeal to the State Government within sixty days from the date of the decision. The High Court also referred to section 20 of the 1969 Act which specifically bars the jurisdiction of the Civil Court. ItNo Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with, by the officer authorised under the proviso to sub section (I) of section 4 or section 25 or the Collector, the Gujarat Revenue Tribunal in appeal, or the State Government in appeal or revision or in exercise of their power of control.On the basis of the provisions of the 1969 Act the High Court came to the conclusion that Explanation 1 to section 2 (1) (e) of the 1952 Act and section 20 or the 1969 Act put beyond the pale of any doubt that the jurisdiction of the Civil Court had been taken away by the legislature to determine the question whether a particular inam is a personal or a devasthan inam.11. We are concerned in the present case with the provisions of the 1952 Act. There is no corresponding provision like section 20 of the 1969 Act in the 1952 Act nor is there any detailed procedure of appeal and revision in that Act as contemplated by the 1969 Act. The High Court in our opinion was not justified in invoking the provisions of the 1969 Act while deciding the case under the 1952 Act.12. The counsel for the State of Gujarat on the other hand referred to the definition of personal inam as given in section 2 (1) (e) of the 1952 Act and according to the learned counsel the inam in question is a personal inam in view of the definition itself which says:Personal inam means a grant of a village, portion of a village, land or total partial exemption from the payment of land revenue entered as personal inam in the alienation register kept under section 53 of the Code."So, entry of the nature of the inam in the alienation register is a decisive factor. In the instant case the inam in question has been entered as personal inam in the alienation register. Therefore, perforce it has to be taken as a personal inam and the plaintiff cannot escape the definition of the expression personal inam as given in section 2 (1) (e). Likewise, for a devasthan inam also it is necessary to be so entered in the alienation register kept under section 53 of the Code in view of Explanation to section 3 of the 1952 Act. The counsel for the appellant on the other hand referred to Explanation I to section 2 (1) (e) of the 1952 Act which indicates that the entry in the register is not an essential part of the definition of the personal inam but it is only descriptive. If the Government decides the case contrary to the entry in the alienation register, the alienation register shall be deemed to have been amended accordingly. This part of the Explanation takes away the rigour of the entry in the alienation register. If the entry in the alienation register will be deemed to have been automatically amended by the decision of the Government on the question whether it is a personal inam or a devasthan inam there is no sanctity attached to such entry which is mainly intended to serve the purpose of realisation of land revenue. The entry cannot be said to be s o sacrosanct that it cannot be changed. Indeed the explanation itself contemplates a change in view of the decision of the Government on the question.It was next contended for the State that the Revenue Court alone has exclusive jurisdiction to correct the entries in the revenue records and the counsel referred to section 53 of the Bombay Land Revenue Code. ItSection 203 of the said Code provides for appeal from any order passed by the Revenue officer to his superior and on the strength of these provisions it is sought to be argued that the plaintiff could have gone up in appeal against the decision of the officer under section 53 of the Code and the jurisdiction of the Civil Court is completely barred. If we refer to section 212 of the Code, the argument of the counsel for the State cannot be accepted. Section 212 contemplates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. If this is what finality means under section 212 it cannot be argued with any force on behalf of the State that the jurisdiction of the Civil Court is barred.For the foregoing discussion the decision of the Full Bench of the High Court cannot be sustained. | 1 | 3,949 | 2,245 | ### Instruction:
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section 4 of the said Act enables the person aggrieved by the decision of the authorised officer to go up in appeal to the State Government within sixty days from the date of the decision. The High Court also referred to section 20 of the 1969 Act which specifically bars the jurisdiction of the Civil Court. It reads:"20. No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with, by the officer authorised under the proviso to sub section (I) of section 4 or section 25 or the Collector, the Gujarat Revenue Tribunal in appeal, or the State Government in appeal or revision or in exercise of their power of control."10. On the basis of the provisions of the 1969 Act the High Court came to the conclusion that Explanation 1 to section 2 (1) (e) of the 1952 Act and section 20 or the 1969 Act put beyond the pale of any doubt that the jurisdiction of the Civil Court had been taken away by the legislature to determine the question whether a particular inam is a personal or a devasthan inam.11. We are concerned in the present case with the provisions of the 1952 Act. There is no corresponding provision like section 20 of the 1969 Act in the 1952 Act nor is there any detailed procedure of appeal and revision in that Act as contemplated by the 1969 Act. The High Court in our opinion was not justified in invoking the provisions of the 1969 Act while deciding the case under the 1952 Act.12. The counsel for the State of Gujarat on the other hand referred to the definition of personal inam as given in section 2 (1) (e) of the 1952 Act and according to the learned counsel the inam in question is a personal inam in view of the definition itself which says:Personal inam means a grant of a village, portion of a village, land or total partial exemption from the payment of land revenue entered as personal inam in the alienation register kept under section 53 of the Code."So, entry of the nature of the inam in the alienation register is a decisive factor. In the instant case the inam in question has been entered as personal inam in the alienation register. Therefore, perforce it has to be taken as a personal inam and the plaintiff cannot escape the definition of the expression personal inam as given in section 2 (1) (e). Likewise, for a devasthan inam also it is necessary to be so entered in the alienation register kept under section 53 of the Code in view of Explanation to section 3 of the 1952 Act. The counsel for the appellant on the other hand referred to Explanation I to section 2 (1) (e) of the 1952 Act which indicates that the entry in the register is not an essential part of the definition of the personal inam but it is only descriptive. If the Government decides the case contrary to the entry in the alienation register, the alienation register shall be deemed to have been amended accordingly. This part of the Explanation takes away the rigour of the entry in the alienation register. If the entry in the alienation register will be deemed to have been automatically amended by the decision of the Government on the question whether it is a personal inam or a devasthan inam there is no sanctity attached to such entry which is mainly intended to serve the purpose of realisation of land revenue. The entry cannot be said to be s o sacrosanct that it cannot be changed. Indeed the explanation itself contemplates a change in view of the decision of the Government on the question.It was next contended for the State that the Revenue Court alone has exclusive jurisdiction to correct the entries in the revenue records and the counsel referred to section 53 of the Bombay Land Revenue Code. It reads:"53. A Register shall be kept by the Collector in such form as may from time to time be pre scribed by the State Government of all lands, the alienation of which has been established or recognized under the provisions of any law for the time being in force; and when it shall be shown to the satisfaction of the Collect or that any sanad granted in relation to any such alienated lands has been permanently lost or destroyed, he may, subject to the rules and the payment of the fees prescribed by the State Government under section 213, grant to any person whom he may deem entitled to the same a certified extract from the said Register, which shall be endorsed by the Collector to the effect that it has been issued in lieu of the sanad said to have been lost or destroyed, and shall be deemed to be as valid a proof of title as the said sanad."13. Section 203 of the said Code provides for appeal from any order passed by the Revenue officer to his superior and on the strength of these provisions it is sought to be argued that the plaintiff could have gone up in appeal against the decision of the officer under section 53 of the Code and the jurisdiction of the Civil Court is completely barred. If we refer to section 212 of the Code, the argument of the counsel for the State cannot be accepted. Section 212 con- templates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. If this is what finality means under section 212 it cannot be argued with any force on behalf of the State that the jurisdiction of the Civil Court is barred.For the foregoing discussion the decision of the Full Bench of the High Court cannot be sustained.
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the Government, the procedure to be followed by the Government, the opportunity to be afforded to the aggrieved party. In the absence of any such details in the Act it is not possible to hold that the use of the expression finality of the decision of the Government in Explanation I to section 2 (1) (e) of the 1952 Act was meant to bar the jurisdiction of the Civil Court.9. The High Court in our opinion has committed a manifest error in travelling beyond the 1952 Act and referring to the provisions of the 1969 Act. The High Court referred to section 4 of the 1969 Act, which exclusively vests the power to decide whether any village, portion of a village, or land is held in devasthan inam , in the authorised officer, and the State Government is empowered to authorise any officer under the proviso to section 4 (l) to decide questions arising under clauses (a) (b) or (c) of section 4. Subsection (2) of section 4 of the said Act enables the person aggrieved by the decision of the authorised officer to go up in appeal to the State Government within sixty days from the date of the decision. The High Court also referred to section 20 of the 1969 Act which specifically bars the jurisdiction of the Civil Court. ItNo Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with, by the officer authorised under the proviso to sub section (I) of section 4 or section 25 or the Collector, the Gujarat Revenue Tribunal in appeal, or the State Government in appeal or revision or in exercise of their power of control.On the basis of the provisions of the 1969 Act the High Court came to the conclusion that Explanation 1 to section 2 (1) (e) of the 1952 Act and section 20 or the 1969 Act put beyond the pale of any doubt that the jurisdiction of the Civil Court had been taken away by the legislature to determine the question whether a particular inam is a personal or a devasthan inam.11. We are concerned in the present case with the provisions of the 1952 Act. There is no corresponding provision like section 20 of the 1969 Act in the 1952 Act nor is there any detailed procedure of appeal and revision in that Act as contemplated by the 1969 Act. The High Court in our opinion was not justified in invoking the provisions of the 1969 Act while deciding the case under the 1952 Act.12. The counsel for the State of Gujarat on the other hand referred to the definition of personal inam as given in section 2 (1) (e) of the 1952 Act and according to the learned counsel the inam in question is a personal inam in view of the definition itself which says:Personal inam means a grant of a village, portion of a village, land or total partial exemption from the payment of land revenue entered as personal inam in the alienation register kept under section 53 of the Code."So, entry of the nature of the inam in the alienation register is a decisive factor. In the instant case the inam in question has been entered as personal inam in the alienation register. Therefore, perforce it has to be taken as a personal inam and the plaintiff cannot escape the definition of the expression personal inam as given in section 2 (1) (e). Likewise, for a devasthan inam also it is necessary to be so entered in the alienation register kept under section 53 of the Code in view of Explanation to section 3 of the 1952 Act. The counsel for the appellant on the other hand referred to Explanation I to section 2 (1) (e) of the 1952 Act which indicates that the entry in the register is not an essential part of the definition of the personal inam but it is only descriptive. If the Government decides the case contrary to the entry in the alienation register, the alienation register shall be deemed to have been amended accordingly. This part of the Explanation takes away the rigour of the entry in the alienation register. If the entry in the alienation register will be deemed to have been automatically amended by the decision of the Government on the question whether it is a personal inam or a devasthan inam there is no sanctity attached to such entry which is mainly intended to serve the purpose of realisation of land revenue. The entry cannot be said to be s o sacrosanct that it cannot be changed. Indeed the explanation itself contemplates a change in view of the decision of the Government on the question.It was next contended for the State that the Revenue Court alone has exclusive jurisdiction to correct the entries in the revenue records and the counsel referred to section 53 of the Bombay Land Revenue Code. ItSection 203 of the said Code provides for appeal from any order passed by the Revenue officer to his superior and on the strength of these provisions it is sought to be argued that the plaintiff could have gone up in appeal against the decision of the officer under section 53 of the Code and the jurisdiction of the Civil Court is completely barred. If we refer to section 212 of the Code, the argument of the counsel for the State cannot be accepted. Section 212 contemplates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. If this is what finality means under section 212 it cannot be argued with any force on behalf of the State that the jurisdiction of the Civil Court is barred.For the foregoing discussion the decision of the Full Bench of the High Court cannot be sustained.
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A.P.I.I.C.Ltd Vs. M/S Team-Asia Lakhi Semiconductors L.&An | appellant had addressed another letter dated 13th March, 2000 to the Company offering another plot. The Company again failed to comply with the conditions and therefore, the proposal with regard to allotment under the letter dated 13th March, 2000 also failed. Once again another plot was offered to the Company by the appellant under letter dated 3rd April, 2001 for Rs.80,00,000/- but the said transaction also did not materialize. The aforesaid facts demonstrate the chequered history and the circumstances in which the Company could not make entire payment of the plot in question, which ultimately resulted into forfeiture of the amount paid and even possession of the plot in question was with the appellant though for a limited purpose, the Company was permitted to occupy the plot.5. It is pertinent to note that the Company, because of its very poor financial conditions, was ordered to be wound up and the official liquidator, appointed by the Company Court wanted to take possession of the plot in question so that the said plot may be sold and out of the sale price, dues of the Company may be paid. When the appellant-Corporation came to know that the official liquidator was making an effort to dispose of the plot in question, believing the plot to be one of the assets of the Company in Liquidation, a Company Application No.474/2006 in the Company Petition No.178/2003 was filed by the appellant praying for taking possession of the plot in question as the plot was in unauthorized possession of the Company. In the said proceedings, the official liquidator admitted the fact that the plot in question had not been transferred in the name of the Company. Ultimately, by an order dated 28th June, 2007 the Company application filed by the appellant had been dismissed by the High Court with a direction to the official liquidator to take appropriate steps to dispose of the plot in question.6. Being aggrieved by the aforestated order passed in the Company application, the appellant had filed an appeal being O.S.A.No.20/2008 before the High Court contending that the plot in question had not been transferred to the Company and therefore, the official liquidator had no right or title in respect of the plot in question and therefore, he could not have taken any action for selling the same.7. The said appeal filed by the appellant has also been dismissed by the High Court of A.P. and therefore, the present appeal has been filed by the appellant-Corporation. 8. The learned counsel for the appellant had submitted before this Court that the ownership right in the plot in question had not been transferred to the Company and therefore, the official liquidator had no right to deal with the said plot. The learned counsel had further submitted that it was an admitted fact that the entire amount of the sale price had not been paid to the appellant by the Company and therefore, the plot had not been transferred to the Company.9. For the aforestated reasons, the learned counsel had submitted that the impugned order passed by the High Court requires to be quashed so that the appellant-Corporation can deal itself with the plot in the manner in which it likes, especially when the amount which had been paid by the Company had already been forfeited because the Company had not fulfilled the conditions on which the plot had been allotted.10. On the other hand, the learned counsel appearing for the official liquidator of the Company had submitted that as an order of winding up had already been passed and as the Company had paid substantial amount towards purchase price of the plot in question, the official liquidator was rightly permitted to dispose of the plot as the plot virtually belonged to the Company.11. The learned counsel had tried to substantiate the reasons given by the learned Single Judge as well as by the Division Bench while deciding O.S.A.No.18 of 2008 in favour of the official liquidator and had submitted that the appeal should be dismissed. 12. We had heard the learned counsel and had also perused the relevant record which clearly shows that the ownership right in respect of the plot in question has not been transferred to the Company. It is an admitted fact that the Company, which is now in liquidation, had not paid the entire amount of the consideration and therefore, the ownership right in respect of the plot had not been transferred to the Company. According to the terms and conditions on which the plot was to be sold to the Company, the amount which had been paid by the Company had already been forfeited and the Company had no right of whatsoever type in the plot in question. 13. In the aforestated circumstances, in our opinion, the High Court was not justified in giving any right in respect of the plot in question to the official liquidator or the Company. It is pertinent to note that the ownership of the plot in question had not been transferred to the Company and a permissive possession given by the appellant to the Company for some limited purpose would not create any interest or right in favour of the Company. The plot would remain the property of the appellant-Corporation as the conditions on which the transfer was to take place had not been fulfilled.14. In the aforestated circumstances, we are of the view that the High Court was in error while coming to the conclusion that the appellant had no right in the plot in question and therefore, the impugned judgment as well as the order passed in Company Application are quashed and set aside and it is held that the plot in question does not belong to the Company in liquidation and the official liquidator has no right to deal with the said plot or dispose of the said plot and it would be open to the appellant-Corporation to deal with or allot the said plot as per its own policy. | 1[ds]13. In the aforestated circumstances, in our opinion, the High Court was not justified in giving any right in respect of the plot in question to the official liquidator or the Company. It is pertinent to note that the ownership of the plot in question had not been transferred to the Company and a permissive possession given by the appellant to the Company for some limited purpose would not create any interest or right in favour of the Company. The plot would remain the property of theas the conditions on which the transfer was to take place had not been fulfilled.14. In the aforestated circumstances, we are of the view that the High Court was in error while coming to the conclusion that the appellant had no right in the plot in question and therefore, the impugned judgment as well as the order passed in Company Application are quashed and set aside and it is held that the plot in question does not belong to the Company in liquidation and the official liquidator has no right to deal with the said plot or dispose of the said plot and it would be open to theto deal with or allot the said plot as per its own policy. | 1 | 1,436 | 220 | ### Instruction:
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appellant had addressed another letter dated 13th March, 2000 to the Company offering another plot. The Company again failed to comply with the conditions and therefore, the proposal with regard to allotment under the letter dated 13th March, 2000 also failed. Once again another plot was offered to the Company by the appellant under letter dated 3rd April, 2001 for Rs.80,00,000/- but the said transaction also did not materialize. The aforesaid facts demonstrate the chequered history and the circumstances in which the Company could not make entire payment of the plot in question, which ultimately resulted into forfeiture of the amount paid and even possession of the plot in question was with the appellant though for a limited purpose, the Company was permitted to occupy the plot.5. It is pertinent to note that the Company, because of its very poor financial conditions, was ordered to be wound up and the official liquidator, appointed by the Company Court wanted to take possession of the plot in question so that the said plot may be sold and out of the sale price, dues of the Company may be paid. When the appellant-Corporation came to know that the official liquidator was making an effort to dispose of the plot in question, believing the plot to be one of the assets of the Company in Liquidation, a Company Application No.474/2006 in the Company Petition No.178/2003 was filed by the appellant praying for taking possession of the plot in question as the plot was in unauthorized possession of the Company. In the said proceedings, the official liquidator admitted the fact that the plot in question had not been transferred in the name of the Company. Ultimately, by an order dated 28th June, 2007 the Company application filed by the appellant had been dismissed by the High Court with a direction to the official liquidator to take appropriate steps to dispose of the plot in question.6. Being aggrieved by the aforestated order passed in the Company application, the appellant had filed an appeal being O.S.A.No.20/2008 before the High Court contending that the plot in question had not been transferred to the Company and therefore, the official liquidator had no right or title in respect of the plot in question and therefore, he could not have taken any action for selling the same.7. The said appeal filed by the appellant has also been dismissed by the High Court of A.P. and therefore, the present appeal has been filed by the appellant-Corporation. 8. The learned counsel for the appellant had submitted before this Court that the ownership right in the plot in question had not been transferred to the Company and therefore, the official liquidator had no right to deal with the said plot. The learned counsel had further submitted that it was an admitted fact that the entire amount of the sale price had not been paid to the appellant by the Company and therefore, the plot had not been transferred to the Company.9. For the aforestated reasons, the learned counsel had submitted that the impugned order passed by the High Court requires to be quashed so that the appellant-Corporation can deal itself with the plot in the manner in which it likes, especially when the amount which had been paid by the Company had already been forfeited because the Company had not fulfilled the conditions on which the plot had been allotted.10. On the other hand, the learned counsel appearing for the official liquidator of the Company had submitted that as an order of winding up had already been passed and as the Company had paid substantial amount towards purchase price of the plot in question, the official liquidator was rightly permitted to dispose of the plot as the plot virtually belonged to the Company.11. The learned counsel had tried to substantiate the reasons given by the learned Single Judge as well as by the Division Bench while deciding O.S.A.No.18 of 2008 in favour of the official liquidator and had submitted that the appeal should be dismissed. 12. We had heard the learned counsel and had also perused the relevant record which clearly shows that the ownership right in respect of the plot in question has not been transferred to the Company. It is an admitted fact that the Company, which is now in liquidation, had not paid the entire amount of the consideration and therefore, the ownership right in respect of the plot had not been transferred to the Company. According to the terms and conditions on which the plot was to be sold to the Company, the amount which had been paid by the Company had already been forfeited and the Company had no right of whatsoever type in the plot in question. 13. In the aforestated circumstances, in our opinion, the High Court was not justified in giving any right in respect of the plot in question to the official liquidator or the Company. It is pertinent to note that the ownership of the plot in question had not been transferred to the Company and a permissive possession given by the appellant to the Company for some limited purpose would not create any interest or right in favour of the Company. The plot would remain the property of the appellant-Corporation as the conditions on which the transfer was to take place had not been fulfilled.14. In the aforestated circumstances, we are of the view that the High Court was in error while coming to the conclusion that the appellant had no right in the plot in question and therefore, the impugned judgment as well as the order passed in Company Application are quashed and set aside and it is held that the plot in question does not belong to the Company in liquidation and the official liquidator has no right to deal with the said plot or dispose of the said plot and it would be open to the appellant-Corporation to deal with or allot the said plot as per its own policy.
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13. In the aforestated circumstances, in our opinion, the High Court was not justified in giving any right in respect of the plot in question to the official liquidator or the Company. It is pertinent to note that the ownership of the plot in question had not been transferred to the Company and a permissive possession given by the appellant to the Company for some limited purpose would not create any interest or right in favour of the Company. The plot would remain the property of theas the conditions on which the transfer was to take place had not been fulfilled.14. In the aforestated circumstances, we are of the view that the High Court was in error while coming to the conclusion that the appellant had no right in the plot in question and therefore, the impugned judgment as well as the order passed in Company Application are quashed and set aside and it is held that the plot in question does not belong to the Company in liquidation and the official liquidator has no right to deal with the said plot or dispose of the said plot and it would be open to theto deal with or allot the said plot as per its own policy.
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Harinagar Sugar Mills Ltd Vs. State Of Bihar | entertains the appeal. There is no direction as such for the appellant to make any payment, under Section 27-B of the Act. It is for the appellate authority to be satisfied that a part of the liability is in deposit with the committee. 14. Considering the facts of the present case in the light of what has been observed by us above, we find that orders of assessment had been made. The liability had been fixed and the amount was determined. The appellate authority was satisfied that one third amount of the fee assessed and due was paid to the committee before filing of appeals. The appeals were dismissed. The revisions preferred thereafter were also dismissed. All statutory remedies stood exhausted. Writ petitions filed under Article 226 of the the Constitution were pending when the order of this Court was rendered in the case of Belsund Sugar Mills case (supra). The writ petitions were deposed of in the light of the judgment of this Court without interfering with the orders of assessment and appellate and the revisional orders. In the case of Belsund Sugar Mills (supra) specific directions have been issued in exercise of powers under Article 142 of the Constitution as to in what circumstances the amount paid to be refunded and not be refunded. We have already quoted earlier the relevant part of the judgment in the Belsund Sugar Mills case (supra) according to which the judgment was prospective in effect without affecting the past transactions and the orders, but the amount of the liability of the fee which had already been paid till the date of the order was not be refunded but the balance which remained unpaid was also not be recovered. In this case we have already held that the amount deposited before filing of appeals was a part of the liability and found due and partly in discharge thereof. It was, therefore, not liable to be refunded and the High Court has rightly held so. 15. Similarly,, we find no force in the appeal preferred by the market committees for a direction to the assessees to deposit the balance amount of the fee assessed. It cannot be done in view of the judgment of this Court in the case of Belsund Sugar Mills case (supra). 16. Learned counsel for the appellant has submitted that once it has been found by this Court in the case of Belsund Sugar Mills (supra) that market fee would not be liable to be paid by the sugar mills, there is no occasion to impose or realize or retain the amount of penalty, collected/deposited on account of delayed payment of the market fee. It is submitted that as a normal consequence of the judgment in the Belsund Sugar Mills case (supra), there would be no liability to pay the market fee even though covered by the past transactions and orders or in future. But in exercise of power under Article 142 of the Constitution of India, this Court provided that the judgment shall have prospective application and the past transations and assessments prior to the date of the judgment shall not be affected, but further provided that the amount already paid before the date of the judgment shall not be required to be refunded to the sugar mills and the amount which remained unpaid in view of any order of stay granted by the Court, shall not be liable to be recovered. Subject to above arrangement, normally, no amount of fee would have been liable to be paid. That being the position, the question of penalty on delayed payment does not arise, more particularly, when there is no provision made in the order that the amount of penalty already paid shall also not be refunded. It is further submitted that apart from the one third amount of fee which has been deposited while filing the appeal, the rest of the amount has been held to be not recoverable by the High Court. That is to say, two third of the market fee assessed, realization of which was stayed, is not liable to be paid or recovered. But the penalty has been imposed considering the whole amount of fee assessed, even the amount which is not recoverable in pursuance of the judgment passed in Belsund Sugar Mills case (supra). It would be completely an anomalous situation that the balance unpaid amount of two third would not be liable to be paid or recovered but 10% of penalty on that amount which has been deposited, while filing the appeal would not be refunded. The High Court has brushed aside this claim of the appellant merely by observing that penalty is an integral part of the tax liability. We, therefore, find that the amount which was in fact not liable to be paid but a part of it is being retained in pursuance of the arrangement made in exercise of powers under Article 142 of the Constitution of India and the remaining part which is not recoverable, no penalty is liable to be recovered and retained. In our view, that the 10% amount of the penalty as paid by the appellant is liable to be refunded.17. Learned counsel for the appellant made a submission that in case of question of refund of market fee deposited is not favourable considered, in that event, the matter may be remanded to the High Court so that the appellant may argue the matter before the High Court on the merits challenging the orders of assessment and on the question so to whether there was or not any quid pro quo against the amount paid by the appellant. We do not think it is possible to accede to the request made. The whole matter was before the High Court. It was always open to the appellant to have argued any point it wished to argue while matter was under hearing. Once having not done so, the matter cannot be remanded to be opened afresh on disputed questions. | 0[ds]we find that orders of assessment had been made. The liability had been fixed and the amount was determined. The appellate authority was satisfied that one third amount of the fee assessed and due was paid to the committee before filing of appeals. The appeals were dismissed. The revisions preferred thereafter were also dismissed. All statutory remedies stood exhausted. Writ petitions filed under Article 226 of the the Constitution were pending when the order of this Court was rendered in the case of Belsund Sugar Mills case (supra). The writ petitions were deposed of in the light of the judgment of this Court without interfering with the orders of assessment and appellate and the revisional orders. In the case of Belsund Sugar Mills (supra) specific directions have been issued in exercise of powers under Article 142 of the Constitution as to in what circumstances the amount paid to be refunded and not be refunded. We have already quoted earlier the relevant part of the judgment in the Belsund Sugar Mills case (supra) according to which the judgment was prospective in effect without affecting the past transactions and the orders, but the amount of the liability of the fee which had already been paid till the date of the order was not be refunded but the balance which remained unpaid was also not be recovered. In this case we have already held that the amount deposited before filing of appeals was a part of the liability and found due and partly in discharge thereof. It was, therefore, not liable to be refunded and the High Court has rightly heldin exercise of power under Article 142 of the Constitution of India, this Court provided that the judgment shall have prospective application and the past transations and assessments prior to the date of the judgment shall not be affected, but further provided that the amount already paid before the date of the judgment shall not be required to be refunded to the sugar mills and the amount which remained unpaid in view of any order of stay granted by the Court, shall not be liable to be recovered. Subject to above arrangement, normally, no amount of fee would have been liable to be paid. That being the position, the question of penalty on delayed payment does not arise, more particularly, when there is no provision made in the order that the amount of penalty already paid shall also not betherefore, find that the amount which was in fact not liable to be paid but a part of it is being retained in pursuance of the arrangement made in exercise of powers under Article 142 of the Constitution of India and the remaining part which is not recoverable, no penalty is liable to be recovered and retained. In our view, that the 10% amount of the penalty as paid by the appellant is liable to bewhole matter was before the High Court. It was always open to the appellant to have argued any point it wished to argue while matter was under hearing. Once having not done so, the matter cannot be remanded to be opened afresh on disputed questions. | 0 | 6,945 | 570 | ### Instruction:
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entertains the appeal. There is no direction as such for the appellant to make any payment, under Section 27-B of the Act. It is for the appellate authority to be satisfied that a part of the liability is in deposit with the committee. 14. Considering the facts of the present case in the light of what has been observed by us above, we find that orders of assessment had been made. The liability had been fixed and the amount was determined. The appellate authority was satisfied that one third amount of the fee assessed and due was paid to the committee before filing of appeals. The appeals were dismissed. The revisions preferred thereafter were also dismissed. All statutory remedies stood exhausted. Writ petitions filed under Article 226 of the the Constitution were pending when the order of this Court was rendered in the case of Belsund Sugar Mills case (supra). The writ petitions were deposed of in the light of the judgment of this Court without interfering with the orders of assessment and appellate and the revisional orders. In the case of Belsund Sugar Mills (supra) specific directions have been issued in exercise of powers under Article 142 of the Constitution as to in what circumstances the amount paid to be refunded and not be refunded. We have already quoted earlier the relevant part of the judgment in the Belsund Sugar Mills case (supra) according to which the judgment was prospective in effect without affecting the past transactions and the orders, but the amount of the liability of the fee which had already been paid till the date of the order was not be refunded but the balance which remained unpaid was also not be recovered. In this case we have already held that the amount deposited before filing of appeals was a part of the liability and found due and partly in discharge thereof. It was, therefore, not liable to be refunded and the High Court has rightly held so. 15. Similarly,, we find no force in the appeal preferred by the market committees for a direction to the assessees to deposit the balance amount of the fee assessed. It cannot be done in view of the judgment of this Court in the case of Belsund Sugar Mills case (supra). 16. Learned counsel for the appellant has submitted that once it has been found by this Court in the case of Belsund Sugar Mills (supra) that market fee would not be liable to be paid by the sugar mills, there is no occasion to impose or realize or retain the amount of penalty, collected/deposited on account of delayed payment of the market fee. It is submitted that as a normal consequence of the judgment in the Belsund Sugar Mills case (supra), there would be no liability to pay the market fee even though covered by the past transactions and orders or in future. But in exercise of power under Article 142 of the Constitution of India, this Court provided that the judgment shall have prospective application and the past transations and assessments prior to the date of the judgment shall not be affected, but further provided that the amount already paid before the date of the judgment shall not be required to be refunded to the sugar mills and the amount which remained unpaid in view of any order of stay granted by the Court, shall not be liable to be recovered. Subject to above arrangement, normally, no amount of fee would have been liable to be paid. That being the position, the question of penalty on delayed payment does not arise, more particularly, when there is no provision made in the order that the amount of penalty already paid shall also not be refunded. It is further submitted that apart from the one third amount of fee which has been deposited while filing the appeal, the rest of the amount has been held to be not recoverable by the High Court. That is to say, two third of the market fee assessed, realization of which was stayed, is not liable to be paid or recovered. But the penalty has been imposed considering the whole amount of fee assessed, even the amount which is not recoverable in pursuance of the judgment passed in Belsund Sugar Mills case (supra). It would be completely an anomalous situation that the balance unpaid amount of two third would not be liable to be paid or recovered but 10% of penalty on that amount which has been deposited, while filing the appeal would not be refunded. The High Court has brushed aside this claim of the appellant merely by observing that penalty is an integral part of the tax liability. We, therefore, find that the amount which was in fact not liable to be paid but a part of it is being retained in pursuance of the arrangement made in exercise of powers under Article 142 of the Constitution of India and the remaining part which is not recoverable, no penalty is liable to be recovered and retained. In our view, that the 10% amount of the penalty as paid by the appellant is liable to be refunded.17. Learned counsel for the appellant made a submission that in case of question of refund of market fee deposited is not favourable considered, in that event, the matter may be remanded to the High Court so that the appellant may argue the matter before the High Court on the merits challenging the orders of assessment and on the question so to whether there was or not any quid pro quo against the amount paid by the appellant. We do not think it is possible to accede to the request made. The whole matter was before the High Court. It was always open to the appellant to have argued any point it wished to argue while matter was under hearing. Once having not done so, the matter cannot be remanded to be opened afresh on disputed questions.
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we find that orders of assessment had been made. The liability had been fixed and the amount was determined. The appellate authority was satisfied that one third amount of the fee assessed and due was paid to the committee before filing of appeals. The appeals were dismissed. The revisions preferred thereafter were also dismissed. All statutory remedies stood exhausted. Writ petitions filed under Article 226 of the the Constitution were pending when the order of this Court was rendered in the case of Belsund Sugar Mills case (supra). The writ petitions were deposed of in the light of the judgment of this Court without interfering with the orders of assessment and appellate and the revisional orders. In the case of Belsund Sugar Mills (supra) specific directions have been issued in exercise of powers under Article 142 of the Constitution as to in what circumstances the amount paid to be refunded and not be refunded. We have already quoted earlier the relevant part of the judgment in the Belsund Sugar Mills case (supra) according to which the judgment was prospective in effect without affecting the past transactions and the orders, but the amount of the liability of the fee which had already been paid till the date of the order was not be refunded but the balance which remained unpaid was also not be recovered. In this case we have already held that the amount deposited before filing of appeals was a part of the liability and found due and partly in discharge thereof. It was, therefore, not liable to be refunded and the High Court has rightly heldin exercise of power under Article 142 of the Constitution of India, this Court provided that the judgment shall have prospective application and the past transations and assessments prior to the date of the judgment shall not be affected, but further provided that the amount already paid before the date of the judgment shall not be required to be refunded to the sugar mills and the amount which remained unpaid in view of any order of stay granted by the Court, shall not be liable to be recovered. Subject to above arrangement, normally, no amount of fee would have been liable to be paid. That being the position, the question of penalty on delayed payment does not arise, more particularly, when there is no provision made in the order that the amount of penalty already paid shall also not betherefore, find that the amount which was in fact not liable to be paid but a part of it is being retained in pursuance of the arrangement made in exercise of powers under Article 142 of the Constitution of India and the remaining part which is not recoverable, no penalty is liable to be recovered and retained. In our view, that the 10% amount of the penalty as paid by the appellant is liable to bewhole matter was before the High Court. It was always open to the appellant to have argued any point it wished to argue while matter was under hearing. Once having not done so, the matter cannot be remanded to be opened afresh on disputed questions.
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Govind Prasad Sharma Vs. Doon Valley Officers Cooperative Society Ltd Secretary Retd. Colonel A.P. Kumeri S/O Shri G.D. Kumer | R.F. Nariman, J. 1. Leave granted.2. The appellants are before us, against a judgment dated 12.12.2014, passed by the High Court of Uttarakhand at Nainital, in which a demarcation report made by a government agency, in the course of conciliation proceedings between the parties, was sought to be relied upon. The Special Judge at Dehradun, specifically referring to Sections 75 and 81 of the Arbitration and Conciliation Act, 1996, dismissed the Revision Petition on 11.12.2012 that was filed against an order dated 06.12.2010, by which an application by the plaintiff for taking the said report as evidence was dismissed. Interfering with the said orders in a Writ Petition filed, the impugned order has allowed the said report to be admitted into evidence. 3. Mr. V. Hansaria, learned Senior Counsel appearing on behalf of the appellants, has argued that Section 75 is in very wide terms and that parties are to keep confidential all matters relating to conciliation proceedings. He also referred to Section 81 of the Act, and stated that parties cannot rely upon or introduce as evidence in arbitral or judicial proceedings, proposals made by the conciliator under sub-clause (c) from which the said report emanated. 4. Mr. Hrishikesh Baruah, learned counsel appearing on behalf of the respondent, has argued that quite clearly none of the sub-clauses in Section 81 would apply. In any case, according to him, the various sub-clauses in Section 81 only reflect the extent of confidentiality that arises out of the earlier sections contained in Part III dealing with Conciliation, and that, therefore, the moment the case does not fit into any of the four pigeon holes of Section 81, the report can certainly be admitted into evidence and relied upon. He also cited a Canadian Supreme Court judgment, which we will deal with, in support of this proposition. 5. Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 read thus: "75. Confidentiality.- Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.81. Admissibility of evidence in other proceedings.- The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings,-(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;(b) admissions made by the other party in the course of the conciliation proceedings;(c) proposals made by the conciliator;(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator." On a reading of Section 75, it is clear that the object of the section is sub-served by the expression "relating to" which is an expression of extremely wide import. (See: Renusagar Power Company Limited v. General Electric Company, (1984) 4 SCC 679 at 704). It is clear, therefore, that both the conciliator and the parties must keep as confidential all matters relating to conciliation proceedings. 6. The litmus test for determining whether the matter relates to conciliation proceedings was laid down by an earlier judgment of this Court. In Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar and Another, [1952] S.C.R. 501, the question to be decided was as to whether a dispute or difference arose out of a certain insurance policy. This Court laid down that the test for determining whether a dispute or difference arose out of the said policy is whether recourse to the contract, by which the parties are bound, is necessary for the purpose of determining the matter in dispute between them. If it is found that such recourse is necessary, then the matter would certainly fall within the policy. Following this judgment, and applying it to the facts of this case, it is clear that recourse needs to be had to conciliation proceedings as the genesis of this demarcation report is only in conciliation proceedings and not otherwise. 7. This being the case, it is of no matter that the present case does not fall within the four pigeon holes contained in Section 81, as otherwise, if there are insidious encroachments on confidentiality, a free and fair settlement may never be arrived at, thus stultifying the object sought to be achieved by Part III of the 1996 Act. 8. Mr. Baruah cited before us a judgment of the Supreme Court of Canada in Union Carbide Canada Inc. and Dow Chemical Canada Inc. v. Bombardier Inc., Bombardier Recreational Products Inc. and Allianz Global Risks US Insurance Company [2014] 1 SCR 800. He relied, in particular, on a sentence contained in para 36 of the said judgment which reads as under:- "Moreover, a litigant cannot object to evidence of a fact that is independent of and separate from a settlement offer." We agree with this decision. In that a litigant cannot possibly object to evidence of a fact that is independent of or separate from a settlement offer. In the facts of the present case, this case is wholly distinguishable and would not apply for the simple reason that the demarcation report has its genesis only in the conciliation proceedings, as has been held by us above. | 1[ds]7. This being the case, it is of no matter that the present case does not fall within the four pigeon holes contained in Section 81, as otherwise, if there are insidious encroachments on confidentiality, a free and fair settlement may never be arrived at, thus stultifying the object sought to be achieved by Part III of the 1996agree with this decision. In that a litigant cannot possibly object to evidence of a fact that is independent of or separate from a settlement offer. In the facts of the present case, this case is wholly distinguishable and would not apply for the simple reason that the demarcation report has its genesis only in the conciliation proceedings, as has been held by us above. | 1 | 1,023 | 139 | ### Instruction:
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R.F. Nariman, J. 1. Leave granted.2. The appellants are before us, against a judgment dated 12.12.2014, passed by the High Court of Uttarakhand at Nainital, in which a demarcation report made by a government agency, in the course of conciliation proceedings between the parties, was sought to be relied upon. The Special Judge at Dehradun, specifically referring to Sections 75 and 81 of the Arbitration and Conciliation Act, 1996, dismissed the Revision Petition on 11.12.2012 that was filed against an order dated 06.12.2010, by which an application by the plaintiff for taking the said report as evidence was dismissed. Interfering with the said orders in a Writ Petition filed, the impugned order has allowed the said report to be admitted into evidence. 3. Mr. V. Hansaria, learned Senior Counsel appearing on behalf of the appellants, has argued that Section 75 is in very wide terms and that parties are to keep confidential all matters relating to conciliation proceedings. He also referred to Section 81 of the Act, and stated that parties cannot rely upon or introduce as evidence in arbitral or judicial proceedings, proposals made by the conciliator under sub-clause (c) from which the said report emanated. 4. Mr. Hrishikesh Baruah, learned counsel appearing on behalf of the respondent, has argued that quite clearly none of the sub-clauses in Section 81 would apply. In any case, according to him, the various sub-clauses in Section 81 only reflect the extent of confidentiality that arises out of the earlier sections contained in Part III dealing with Conciliation, and that, therefore, the moment the case does not fit into any of the four pigeon holes of Section 81, the report can certainly be admitted into evidence and relied upon. He also cited a Canadian Supreme Court judgment, which we will deal with, in support of this proposition. 5. Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 read thus: "75. Confidentiality.- Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.81. Admissibility of evidence in other proceedings.- The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings,-(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;(b) admissions made by the other party in the course of the conciliation proceedings;(c) proposals made by the conciliator;(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator." On a reading of Section 75, it is clear that the object of the section is sub-served by the expression "relating to" which is an expression of extremely wide import. (See: Renusagar Power Company Limited v. General Electric Company, (1984) 4 SCC 679 at 704). It is clear, therefore, that both the conciliator and the parties must keep as confidential all matters relating to conciliation proceedings. 6. The litmus test for determining whether the matter relates to conciliation proceedings was laid down by an earlier judgment of this Court. In Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar and Another, [1952] S.C.R. 501, the question to be decided was as to whether a dispute or difference arose out of a certain insurance policy. This Court laid down that the test for determining whether a dispute or difference arose out of the said policy is whether recourse to the contract, by which the parties are bound, is necessary for the purpose of determining the matter in dispute between them. If it is found that such recourse is necessary, then the matter would certainly fall within the policy. Following this judgment, and applying it to the facts of this case, it is clear that recourse needs to be had to conciliation proceedings as the genesis of this demarcation report is only in conciliation proceedings and not otherwise. 7. This being the case, it is of no matter that the present case does not fall within the four pigeon holes contained in Section 81, as otherwise, if there are insidious encroachments on confidentiality, a free and fair settlement may never be arrived at, thus stultifying the object sought to be achieved by Part III of the 1996 Act. 8. Mr. Baruah cited before us a judgment of the Supreme Court of Canada in Union Carbide Canada Inc. and Dow Chemical Canada Inc. v. Bombardier Inc., Bombardier Recreational Products Inc. and Allianz Global Risks US Insurance Company [2014] 1 SCR 800. He relied, in particular, on a sentence contained in para 36 of the said judgment which reads as under:- "Moreover, a litigant cannot object to evidence of a fact that is independent of and separate from a settlement offer." We agree with this decision. In that a litigant cannot possibly object to evidence of a fact that is independent of or separate from a settlement offer. In the facts of the present case, this case is wholly distinguishable and would not apply for the simple reason that the demarcation report has its genesis only in the conciliation proceedings, as has been held by us above.
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1
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7. This being the case, it is of no matter that the present case does not fall within the four pigeon holes contained in Section 81, as otherwise, if there are insidious encroachments on confidentiality, a free and fair settlement may never be arrived at, thus stultifying the object sought to be achieved by Part III of the 1996agree with this decision. In that a litigant cannot possibly object to evidence of a fact that is independent of or separate from a settlement offer. In the facts of the present case, this case is wholly distinguishable and would not apply for the simple reason that the demarcation report has its genesis only in the conciliation proceedings, as has been held by us above.
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STATE OF BIHAR (NOW ST.OF JHARKHAND) THROUGH THE SUB DIVISIONAL OFFICER Vs. TATA IRON | committed an inadvertent error in the calculation of interest payable under Clause (xii) in the year 1985 which was corrected later.11. Mr. Gopal Jain, learned Senior Counsel for the Respondent, argued that the High Court was right in its interpretation of Clause (xii) and Clause (xv) of the Lease Deed by taking into account the intention of the parties. He submitted that the revised demand made in the year 1994 was a unilateral decision of the Government contrary to the terms of the Lease Deed. The demand made by reading the words ?per annum? into Clause (xii) of the Lease Deed is wholly impermissible.12. The well known rule of interpretation of Contracts is that the deed ought to be read as a whole in order to ascertain the true meaning of its several clauses and a word of each Clause should be so interpreted as to bring it into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible. Chamber Colliery Ltd. v. T wyerould (Note) (1893) (1915) 1 Ch. 268, per Lord Watson.13. Lord Hope speaking for the Supreme Court of the United Kingdom stated the principles of interpretation as follows Multi-Link Leisure Developments Limited v. North Lanarkshire Council (Scotland) [2010] UKSC 47 :?The court?s task is to ascertain the intention of the parties by examining the words they used and giving them their ordinary meaning in their contractual context. It must start with what it is given by the parties themselves when it is conducting this exercise. Effect is to be given to every word, so far as possible, in the order in which they appear in the clauses in question. Words should not be added which are not there, and words which are there should not be changed, taken out or moved from the place in the clause where they have been put by the parties. It may be necessary to do some of these things at a later stage to make sense of the language. But this should not be done until it has become clear that the language the parties actually used creates an ambiguity which cannot be solved otherwise.?14. The well known principles of interpretation of a contract were correctly appreciated by the High Court. The question that falls for our consideration in this case is whether the demand of interest made by the Certificate Officer for the arrears of rent payable under Clause (xii) of the Lease Deed was valid or not.15. It is relevant to refer to Section 7D and Section 7E of the BLR Act. The Agreement dated 01.08.1984 and the Lease Deed dated 01.8.1985 was entered into pursuant to the abovementioned provisions of the BLR Act. Clause (xii) of the Lease Deed pertains to lands which have been developed by the Respondent by establishing industries and other civic amenities whereas Clause (xv) relates to lands which were being used for commercial purposes. The Respondent was making money from the use of lands that were covered under Clause (xv) for which reason the ?jama? was also fixed for the lands falling under Clause (xv) for five years at a time. Interest being calculated on a yearly basis as per Clause (xv) is clearly due to the lands being used for commercial purposes wherefrom the Respondent was getting returns. The exclusion of the words ?per annum? in Clause (xii) was intentional and the Appellant cannot be permitted to read those words into Clause (xii) for the purpose of issuing a demand of additional amount towards interest. A plain reading of the Lease Deed as a whole would make it clear that the payment of interest on rent chargeable under Clause (xii) is essentially different from that under Clause (xv). The principle of Expressio Unius Est Exclusio Alterius is squarely applicable to the facts of this case. For the above reasons, we are in agreement with the finding of the High Court that the District Collector, Jamshedpur was not right in issuing a demand for payment of Rs.5.97 Crores towards interest on the arrears of rent for the lands covered under Clause (xii) of the Lease Deed.16. However, the conclusion of the High Court that the demand does not fall within the sweep of the Public Demands Act is not correct. Being aware of the earlier decision of the High Court on this point, an error was committed by the High Court in taking a completely different view. If the High Court was not in agreement with the earlier decision, the only course open to it was to refer the matter to a larger Bench. That apart, in Clause (xx) of the Lease Deed, the Respondent and the Appellant agreed that recoveries of arrears of rent may be affected under the Public Demands Act. It is not open to the Respondent to contend that the demand made for payment of interest under the Lease Deed as not a public demand in view of Clause (xx) of the Lease Deed. ?Public demand? has been defined in Section 3(6) of the Public Demands Act as under:"3. Definitions. … … (6)?Public demand? means any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon upto the date on which a certificate is signed under Part II.?Item No.7 of Schedule I of the Public Demands Act is as follows:?Any demand payable to the Collector by a person holding any interest in land, pasturage, forest-rights, fisheries or the like, whether such demand is or is not transferable, when such demand is a condition of the use and enjoyment of such land, pasturage, forest right, fisheries or other things.?17. Item No.7 of Schedule I covers any demand payable by a person holding any interest in land. Therefore, interest on rent payable for the lands would, in our opinion, be recoverable under Item No.7 of Schedule I read with Section 3(6) of the Public Demands Act. | 0[ds]A plain reading of the Lease Deed as a whole would make it clear that the payment of interest on rent chargeable under Clause (xii) is essentially different from that under Clause (xv). The principle of Expressio Unius Est Exclusio Alterius is squarely applicable to the facts of this case. For the above reasons, we are in agreement with the finding of the High Court that the District Collector, Jamshedpur was not right in issuing a demand for payment of Rs.5.97 Crores towards interest on the arrears of rent for the lands covered under Clause (xii) of the Lease Deed.16. However, the conclusion of the High Court that the demand does not fall within the sweep of the Public Demands Act is not correct. Being aware of the earlier decision of the High Court on this point, an error was committed by the High Court in taking a completely different view. If the High Court was not in agreement with the earlier decision, the only course open to it was to refer the matter to a larger Bench. That apart, in Clause (xx) of the Lease Deed, the Respondent and the Appellant agreed that recoveries of arrears of rent may be affected under the Public Demands Act. It is not open to the Respondent to contend that the demand made for payment of interest under the Lease Deed as not a public demand in view of Clause (xx) of the Lease Deed.Item No.7 of Schedule I covers any demand payable by a person holding any interest in land. Therefore, interest on rent payable for the lands would, in our opinion, be recoverable under Item No.7 of Schedule I read with Section 3(6) of the Public Demands Act. | 0 | 3,674 | 323 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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committed an inadvertent error in the calculation of interest payable under Clause (xii) in the year 1985 which was corrected later.11. Mr. Gopal Jain, learned Senior Counsel for the Respondent, argued that the High Court was right in its interpretation of Clause (xii) and Clause (xv) of the Lease Deed by taking into account the intention of the parties. He submitted that the revised demand made in the year 1994 was a unilateral decision of the Government contrary to the terms of the Lease Deed. The demand made by reading the words ?per annum? into Clause (xii) of the Lease Deed is wholly impermissible.12. The well known rule of interpretation of Contracts is that the deed ought to be read as a whole in order to ascertain the true meaning of its several clauses and a word of each Clause should be so interpreted as to bring it into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible. Chamber Colliery Ltd. v. T wyerould (Note) (1893) (1915) 1 Ch. 268, per Lord Watson.13. Lord Hope speaking for the Supreme Court of the United Kingdom stated the principles of interpretation as follows Multi-Link Leisure Developments Limited v. North Lanarkshire Council (Scotland) [2010] UKSC 47 :?The court?s task is to ascertain the intention of the parties by examining the words they used and giving them their ordinary meaning in their contractual context. It must start with what it is given by the parties themselves when it is conducting this exercise. Effect is to be given to every word, so far as possible, in the order in which they appear in the clauses in question. Words should not be added which are not there, and words which are there should not be changed, taken out or moved from the place in the clause where they have been put by the parties. It may be necessary to do some of these things at a later stage to make sense of the language. But this should not be done until it has become clear that the language the parties actually used creates an ambiguity which cannot be solved otherwise.?14. The well known principles of interpretation of a contract were correctly appreciated by the High Court. The question that falls for our consideration in this case is whether the demand of interest made by the Certificate Officer for the arrears of rent payable under Clause (xii) of the Lease Deed was valid or not.15. It is relevant to refer to Section 7D and Section 7E of the BLR Act. The Agreement dated 01.08.1984 and the Lease Deed dated 01.8.1985 was entered into pursuant to the abovementioned provisions of the BLR Act. Clause (xii) of the Lease Deed pertains to lands which have been developed by the Respondent by establishing industries and other civic amenities whereas Clause (xv) relates to lands which were being used for commercial purposes. The Respondent was making money from the use of lands that were covered under Clause (xv) for which reason the ?jama? was also fixed for the lands falling under Clause (xv) for five years at a time. Interest being calculated on a yearly basis as per Clause (xv) is clearly due to the lands being used for commercial purposes wherefrom the Respondent was getting returns. The exclusion of the words ?per annum? in Clause (xii) was intentional and the Appellant cannot be permitted to read those words into Clause (xii) for the purpose of issuing a demand of additional amount towards interest. A plain reading of the Lease Deed as a whole would make it clear that the payment of interest on rent chargeable under Clause (xii) is essentially different from that under Clause (xv). The principle of Expressio Unius Est Exclusio Alterius is squarely applicable to the facts of this case. For the above reasons, we are in agreement with the finding of the High Court that the District Collector, Jamshedpur was not right in issuing a demand for payment of Rs.5.97 Crores towards interest on the arrears of rent for the lands covered under Clause (xii) of the Lease Deed.16. However, the conclusion of the High Court that the demand does not fall within the sweep of the Public Demands Act is not correct. Being aware of the earlier decision of the High Court on this point, an error was committed by the High Court in taking a completely different view. If the High Court was not in agreement with the earlier decision, the only course open to it was to refer the matter to a larger Bench. That apart, in Clause (xx) of the Lease Deed, the Respondent and the Appellant agreed that recoveries of arrears of rent may be affected under the Public Demands Act. It is not open to the Respondent to contend that the demand made for payment of interest under the Lease Deed as not a public demand in view of Clause (xx) of the Lease Deed. ?Public demand? has been defined in Section 3(6) of the Public Demands Act as under:"3. Definitions. … … (6)?Public demand? means any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon upto the date on which a certificate is signed under Part II.?Item No.7 of Schedule I of the Public Demands Act is as follows:?Any demand payable to the Collector by a person holding any interest in land, pasturage, forest-rights, fisheries or the like, whether such demand is or is not transferable, when such demand is a condition of the use and enjoyment of such land, pasturage, forest right, fisheries or other things.?17. Item No.7 of Schedule I covers any demand payable by a person holding any interest in land. Therefore, interest on rent payable for the lands would, in our opinion, be recoverable under Item No.7 of Schedule I read with Section 3(6) of the Public Demands Act.
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0
### Explanation:
A plain reading of the Lease Deed as a whole would make it clear that the payment of interest on rent chargeable under Clause (xii) is essentially different from that under Clause (xv). The principle of Expressio Unius Est Exclusio Alterius is squarely applicable to the facts of this case. For the above reasons, we are in agreement with the finding of the High Court that the District Collector, Jamshedpur was not right in issuing a demand for payment of Rs.5.97 Crores towards interest on the arrears of rent for the lands covered under Clause (xii) of the Lease Deed.16. However, the conclusion of the High Court that the demand does not fall within the sweep of the Public Demands Act is not correct. Being aware of the earlier decision of the High Court on this point, an error was committed by the High Court in taking a completely different view. If the High Court was not in agreement with the earlier decision, the only course open to it was to refer the matter to a larger Bench. That apart, in Clause (xx) of the Lease Deed, the Respondent and the Appellant agreed that recoveries of arrears of rent may be affected under the Public Demands Act. It is not open to the Respondent to contend that the demand made for payment of interest under the Lease Deed as not a public demand in view of Clause (xx) of the Lease Deed.Item No.7 of Schedule I covers any demand payable by a person holding any interest in land. Therefore, interest on rent payable for the lands would, in our opinion, be recoverable under Item No.7 of Schedule I read with Section 3(6) of the Public Demands Act.
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Shri Shubhlaxmi Mills Limited Vs. Additional Commissioner of Income Tax, Gujarat | disclosed by the books of the assessee. Mere book entries will suffice for creating such reserve fund. The debit entries and the entries relating to the reserve fund have to be made before the profit and loss account is finally drawn up. That is a condition for securing the benefit of development rebate and if that condition is not satisfied, we fail to see how the deduction on account of development rebate can be claimed at allLearned counsel for the assessee relies on West Laikdihi Coal Co. Ltd. v. CIT [1973] 87 ITR 501 (Cal) and CIT v. Modi Spinning and Weaving Mills Co. Ltd. [1973] 89 ITR 304 (All) . Those were cases decided under the provisions of the Indian Income-tax Act, 1922, and there was no Explanation such as the one we have before us. Reference was made to the decision of this court in Indian Overseas Bank Ltd. v. CIT [1970] 77 ITR 512. In that case, however the question was whether the creation of a reserve in compliance with section 17 of the Banking Companies Act constituted sufficient compliance with the requirements of proviso (b) to section 10(2)(vib) of the Indian Income-tax Act, 1922. Reference has also been made to Addl. CIT v. Vishnu Industrial Enterprises [1980] 122 ITR 919 (All) . We do not find it possible to agree with the view taken by the Allahabad High Court in that case that the development rebate reserve need not be created in the relevant previous year during which the new machinery or plant is installed and that a profit must have been earned during the previous year to permit the creation of a reserve fund. We think that the Explanation is clear, and that there can be no doubt that it envisages the creation of a reserve fund notwithstanding that there is no profit or insufficient profit from which such reserve may be provided. To contemplate otherwise would be to negate the entire scheme incorporated in section 33 read with section 34 of the Act. For the same reason, we are unable to affirm the view taken by the Allahabad High Court in CIT v. U. P. Hotel and Restaurants Ltd. [1984] 145 ITR 598. Our attention has been drawn by learned counsel for the assessee to Dodballapur Spinning Mills Ltd. v. CIT [1980] 121 ITR 94 (Kar) , where reference has been made to a circular issued by the Central Board of Direct Taxes dated October 14, 1965, and to a subsequent circular dated January 30, 1976. We have carefully considered the matter and we do not think that the circulars affect the true position in lawOn behalf of the assessee, reliance was placed on Indian Oil Corporation Ltd. v. S. Rajagopalan, ITO [1973] 92 ITR 241 , where the Bombay High Court has held that there was no obligation on the assessee to create a reserve in the year of installation if there was no taxable income in the relevant year. Some of the submissions addressed in that case may be set forth in detail. A powerful argument was addressed by learned counsel for the assessee and it was pointed out that the expression "shall be allowed" in clause (a) of sub-section (1) of section 33 indicated that the development rebate is to be assessed and thereupon it becomes allowable, and that sub-section (2) of section 33 which provides for the allowance of development rebate mentions that the sum "to be allowed" by way of development rebate for the assessment year shall be only such amount as shall be sufficient to reduce the total assessable income to nil and the amount of development rebate to the extent to which it has not been allowed shall be carried forward to the following assessment years for eight subsequent years. Reference was also made to the distinction between the expressions "to be allowed" and "actually allowed" used in the relevant provisions. It was also argued that the utilisation by the assessee of the development rebate reserve for the purposes of the business of the undertaking contemplated the existence of an actual fund which could be utilised forth purposes of the business, and that an illusory debit entry in the profit and loss account and an illusory credit entry in the development rebate reserve account were not contemplated. The High Court accepted the submission and concluded that it was not mandatory that the necessary debit and credit entries must be made in the assessment year following the year of installation in which the development rebate is determined under section 33. Having considered the matter at some length in the present case, it seems to us clear that in order to claim the deduction on account of development rebate under sub-section (1) of section 33, it is obligatory that the debit entries in the profit and loss account and the credit entry in reserve account should be made in the relevant previous year in which the machinery or plant is installed or first put to use. The development rebate contemplated by sub-section (1) of section 33 cannot be allowed as deduction unless a reserve account has been created in the previous year in which the installation or first use occurs. Any doubt in so reading the provisions because of want, or insufficiency, of profit in such previous year has been removed by the Explanation to clause (a) of sub-section (3) of section 34. The significance of the words "actually allowed" in clause (a) of sub-section (3) of section 34 has been considered by the High Court in the judgment under appeal and we are in entire agreement with the view taken by the High Court in that regardA number of other cases have also been placed before us by learned counsel for the assessee, but as they deal with the point on the basis of considerations substantially the same as have been referred to in the cases mentioned earlier, we think it unnecessary to deal with them specifically. 4. | 0[ds]The Finance Act, 1966, added an Explanation to this clause. The Explanation declared that the deduction referred to in section 33 could not be denied by reason only that the amount debited to the profit and loss account of the relevant previous year and credited to the aforesaid reserve account exceeded the amount of the profit of such previous year (as arrived at without making the deposit aforesaid) in accordance with the profit and loss account. The Explanation was inserted with retrospective effect from the commencement of the Act. Before the Explanation was enacted, difference of opinion had existed between the High Courts on the question whether the statute required the creation of the reserve in the previous year in which the new machinery or plant was installed, when the amount of the profit of that previous year was either nil or insufficient for the purposes of enabling the creation of such reserve. It is not necessary to refer to these cases, for it seems clear to us that the Explanation, which applies to the assessment year under consideration before us, removes the doubt altogether. What is contemplated is the creation of a reserve fund in the relevant previous year irrespective of the result of the profit and loss account disclosed by the books of the assessee. Mere book entries will suffice for creating such reserve fund. The debit entries and the entries relating to the reserve fund have to be made before the profit and loss account is finally drawn up. That is a condition for securing the benefit of development rebate and if that condition is not satisfied, we fail to see how the deduction on account of development rebate can be claimed at allLearned counsel for the assessee relies on West Laikdihi Coal Co. Ltd. v. CIT [1973] 87 ITR 501 (Cal) and CIT v. Modi Spinning and Weaving Mills Co. Ltd. [1973] 89 ITR 304 (All) . Those were cases decided under the provisions of the Indian Income-tax Act, 1922, and there was no Explanation such as the one we have before us. Reference was made to the decision of this court in Indian Overseas Bank Ltd. v. CIT [1970] 77 ITR 512. In that case, however the question was whether the creation of a reserve in compliance with section 17 of the Banking Companies Act constituted sufficient compliance with the requirements of proviso (b) to section 10(2)(vib) of the Indian Income-tax Act, 1922. Reference has also been made to Addl. CIT v. Vishnu Industrial Enterprises [1980] 122 ITR 919 (All) . We do not find it possible to agree with the view taken by the Allahabad High Court in that case that the development rebate reserve need not be created in the relevant previous year during which the new machinery or plant is installed and that a profit must have been earned during the previous year to permit the creation of a reserve fund. We think that the Explanation is clear, and that there can be no doubt that it envisages the creation of a reserve fund notwithstanding that there is no profit or insufficient profit from which such reserve may be provided. To contemplate otherwise would be to negate the entire scheme incorporated in section 33 read with section 34 of the Act. For the same reason, we are unable to affirm the view taken by the Allahabad High Court in CIT v. U. P. Hotel and Restaurants Ltd. [1984] 145 ITR 598. Our attention has been drawn by learned counsel for the assessee to Dodballapur Spinning Mills Ltd. v. CIT [1980] 121 ITR 94 (Kar) , where reference has been made to a circular issued by the Central Board of Direct Taxes dated October 14, 1965, and to a subsequent circular dated January 30, 1976. We have carefully considered the matter and we do not think that the circulars affect the true position in lawOn behalf of the assessee, reliance was placed on Indian Oil Corporation Ltd. v. S. Rajagopalan, ITO [1973] 92 ITR 241 , where the Bombay High Court has held that there was no obligation on the assessee to create a reserve in the year of installation if there was no taxable income in the relevant year. Some of the submissions addressed in that case may be set forth in detail. A powerful argument was addressed by learned counsel for the assessee and it was pointed out that the expression "shall be allowed" in clause (a) of sub-section (1) of section 33 indicated that the development rebate is to be assessed and thereupon it becomes allowable, and that sub-section (2) of section 33 which provides for the allowance of development rebate mentions that the sum "to be allowed" by way of development rebate for the assessment year shall be only such amount as shall be sufficient to reduce the total assessable income to nil and the amount of development rebate to the extent to which it has not been allowed shall be carried forward to the following assessment years for eight subsequent years. Reference was also made to the distinction between the expressions "to be allowed" and "actually allowed" used in the relevant provisions. It was also argued that the utilisation by the assessee of the development rebate reserve for the purposes of the business of the undertaking contemplated the existence of an actual fund which could be utilised forth purposes of the business, and that an illusory debit entry in the profit and loss account and an illusory credit entry in the development rebate reserve account were not contemplated. The High Court accepted the submission and concluded that it was not mandatory that the necessary debit and credit entries must be made in the assessment year following the year of installation in which the development rebate is determined under section 33. Having considered the matter at some length in the present case, it seems to us clear that in order to claim the deduction on account of development rebate under sub-section (1) of section 33, it is obligatory that the debit entries in the profit and loss account and the credit entry in reserve account should be made in the relevant previous year in which the machinery or plant is installed or first put to use. The development rebate contemplated by sub-section (1) of section 33 cannot be allowed as deduction unless a reserve account has been created in the previous year in which the installation or first use occurs. Any doubt in so reading the provisions because of want, or insufficiency, of profit in such previous year has been removed by the Explanation to clause (a) of sub-section (3) of section 34. The significance of the words "actually allowed" in clause (a) of sub-section (3) of section 34 has been considered by the High Court in the judgment under appeal and we are in entire agreement with the view taken by the High Court in that regardA number of other cases have also been placed before us by learned counsel for the assessee, but as they deal with the point on the basis of considerations substantially the same as have been referred to in the cases mentioned earlier, we think it unnecessary to deal with them specifically | 0 | 1,892 | 1,327 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
disclosed by the books of the assessee. Mere book entries will suffice for creating such reserve fund. The debit entries and the entries relating to the reserve fund have to be made before the profit and loss account is finally drawn up. That is a condition for securing the benefit of development rebate and if that condition is not satisfied, we fail to see how the deduction on account of development rebate can be claimed at allLearned counsel for the assessee relies on West Laikdihi Coal Co. Ltd. v. CIT [1973] 87 ITR 501 (Cal) and CIT v. Modi Spinning and Weaving Mills Co. Ltd. [1973] 89 ITR 304 (All) . Those were cases decided under the provisions of the Indian Income-tax Act, 1922, and there was no Explanation such as the one we have before us. Reference was made to the decision of this court in Indian Overseas Bank Ltd. v. CIT [1970] 77 ITR 512. In that case, however the question was whether the creation of a reserve in compliance with section 17 of the Banking Companies Act constituted sufficient compliance with the requirements of proviso (b) to section 10(2)(vib) of the Indian Income-tax Act, 1922. Reference has also been made to Addl. CIT v. Vishnu Industrial Enterprises [1980] 122 ITR 919 (All) . We do not find it possible to agree with the view taken by the Allahabad High Court in that case that the development rebate reserve need not be created in the relevant previous year during which the new machinery or plant is installed and that a profit must have been earned during the previous year to permit the creation of a reserve fund. We think that the Explanation is clear, and that there can be no doubt that it envisages the creation of a reserve fund notwithstanding that there is no profit or insufficient profit from which such reserve may be provided. To contemplate otherwise would be to negate the entire scheme incorporated in section 33 read with section 34 of the Act. For the same reason, we are unable to affirm the view taken by the Allahabad High Court in CIT v. U. P. Hotel and Restaurants Ltd. [1984] 145 ITR 598. Our attention has been drawn by learned counsel for the assessee to Dodballapur Spinning Mills Ltd. v. CIT [1980] 121 ITR 94 (Kar) , where reference has been made to a circular issued by the Central Board of Direct Taxes dated October 14, 1965, and to a subsequent circular dated January 30, 1976. We have carefully considered the matter and we do not think that the circulars affect the true position in lawOn behalf of the assessee, reliance was placed on Indian Oil Corporation Ltd. v. S. Rajagopalan, ITO [1973] 92 ITR 241 , where the Bombay High Court has held that there was no obligation on the assessee to create a reserve in the year of installation if there was no taxable income in the relevant year. Some of the submissions addressed in that case may be set forth in detail. A powerful argument was addressed by learned counsel for the assessee and it was pointed out that the expression "shall be allowed" in clause (a) of sub-section (1) of section 33 indicated that the development rebate is to be assessed and thereupon it becomes allowable, and that sub-section (2) of section 33 which provides for the allowance of development rebate mentions that the sum "to be allowed" by way of development rebate for the assessment year shall be only such amount as shall be sufficient to reduce the total assessable income to nil and the amount of development rebate to the extent to which it has not been allowed shall be carried forward to the following assessment years for eight subsequent years. Reference was also made to the distinction between the expressions "to be allowed" and "actually allowed" used in the relevant provisions. It was also argued that the utilisation by the assessee of the development rebate reserve for the purposes of the business of the undertaking contemplated the existence of an actual fund which could be utilised forth purposes of the business, and that an illusory debit entry in the profit and loss account and an illusory credit entry in the development rebate reserve account were not contemplated. The High Court accepted the submission and concluded that it was not mandatory that the necessary debit and credit entries must be made in the assessment year following the year of installation in which the development rebate is determined under section 33. Having considered the matter at some length in the present case, it seems to us clear that in order to claim the deduction on account of development rebate under sub-section (1) of section 33, it is obligatory that the debit entries in the profit and loss account and the credit entry in reserve account should be made in the relevant previous year in which the machinery or plant is installed or first put to use. The development rebate contemplated by sub-section (1) of section 33 cannot be allowed as deduction unless a reserve account has been created in the previous year in which the installation or first use occurs. Any doubt in so reading the provisions because of want, or insufficiency, of profit in such previous year has been removed by the Explanation to clause (a) of sub-section (3) of section 34. The significance of the words "actually allowed" in clause (a) of sub-section (3) of section 34 has been considered by the High Court in the judgment under appeal and we are in entire agreement with the view taken by the High Court in that regardA number of other cases have also been placed before us by learned counsel for the assessee, but as they deal with the point on the basis of considerations substantially the same as have been referred to in the cases mentioned earlier, we think it unnecessary to deal with them specifically. 4.
### Response:
0
### Explanation:
account disclosed by the books of the assessee. Mere book entries will suffice for creating such reserve fund. The debit entries and the entries relating to the reserve fund have to be made before the profit and loss account is finally drawn up. That is a condition for securing the benefit of development rebate and if that condition is not satisfied, we fail to see how the deduction on account of development rebate can be claimed at allLearned counsel for the assessee relies on West Laikdihi Coal Co. Ltd. v. CIT [1973] 87 ITR 501 (Cal) and CIT v. Modi Spinning and Weaving Mills Co. Ltd. [1973] 89 ITR 304 (All) . Those were cases decided under the provisions of the Indian Income-tax Act, 1922, and there was no Explanation such as the one we have before us. Reference was made to the decision of this court in Indian Overseas Bank Ltd. v. CIT [1970] 77 ITR 512. In that case, however the question was whether the creation of a reserve in compliance with section 17 of the Banking Companies Act constituted sufficient compliance with the requirements of proviso (b) to section 10(2)(vib) of the Indian Income-tax Act, 1922. Reference has also been made to Addl. CIT v. Vishnu Industrial Enterprises [1980] 122 ITR 919 (All) . We do not find it possible to agree with the view taken by the Allahabad High Court in that case that the development rebate reserve need not be created in the relevant previous year during which the new machinery or plant is installed and that a profit must have been earned during the previous year to permit the creation of a reserve fund. We think that the Explanation is clear, and that there can be no doubt that it envisages the creation of a reserve fund notwithstanding that there is no profit or insufficient profit from which such reserve may be provided. To contemplate otherwise would be to negate the entire scheme incorporated in section 33 read with section 34 of the Act. For the same reason, we are unable to affirm the view taken by the Allahabad High Court in CIT v. U. P. Hotel and Restaurants Ltd. [1984] 145 ITR 598. Our attention has been drawn by learned counsel for the assessee to Dodballapur Spinning Mills Ltd. v. CIT [1980] 121 ITR 94 (Kar) , where reference has been made to a circular issued by the Central Board of Direct Taxes dated October 14, 1965, and to a subsequent circular dated January 30, 1976. We have carefully considered the matter and we do not think that the circulars affect the true position in lawOn behalf of the assessee, reliance was placed on Indian Oil Corporation Ltd. v. S. Rajagopalan, ITO [1973] 92 ITR 241 , where the Bombay High Court has held that there was no obligation on the assessee to create a reserve in the year of installation if there was no taxable income in the relevant year. Some of the submissions addressed in that case may be set forth in detail. A powerful argument was addressed by learned counsel for the assessee and it was pointed out that the expression "shall be allowed" in clause (a) of sub-section (1) of section 33 indicated that the development rebate is to be assessed and thereupon it becomes allowable, and that sub-section (2) of section 33 which provides for the allowance of development rebate mentions that the sum "to be allowed" by way of development rebate for the assessment year shall be only such amount as shall be sufficient to reduce the total assessable income to nil and the amount of development rebate to the extent to which it has not been allowed shall be carried forward to the following assessment years for eight subsequent years. Reference was also made to the distinction between the expressions "to be allowed" and "actually allowed" used in the relevant provisions. It was also argued that the utilisation by the assessee of the development rebate reserve for the purposes of the business of the undertaking contemplated the existence of an actual fund which could be utilised forth purposes of the business, and that an illusory debit entry in the profit and loss account and an illusory credit entry in the development rebate reserve account were not contemplated. The High Court accepted the submission and concluded that it was not mandatory that the necessary debit and credit entries must be made in the assessment year following the year of installation in which the development rebate is determined under section 33. Having considered the matter at some length in the present case, it seems to us clear that in order to claim the deduction on account of development rebate under sub-section (1) of section 33, it is obligatory that the debit entries in the profit and loss account and the credit entry in reserve account should be made in the relevant previous year in which the machinery or plant is installed or first put to use. The development rebate contemplated by sub-section (1) of section 33 cannot be allowed as deduction unless a reserve account has been created in the previous year in which the installation or first use occurs. Any doubt in so reading the provisions because of want, or insufficiency, of profit in such previous year has been removed by the Explanation to clause (a) of sub-section (3) of section 34. The significance of the words "actually allowed" in clause (a) of sub-section (3) of section 34 has been considered by the High Court in the judgment under appeal and we are in entire agreement with the view taken by the High Court in that regardA number of other cases have also been placed before us by learned counsel for the assessee, but as they deal with the point on the basis of considerations substantially the same as have been referred to in the cases mentioned earlier, we think it unnecessary to deal with them specifically
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CHAIRMAN-CUM-MANAGING DIRECTOR, MAHANADI COALFIELDS LIMITED Vs. SRI RABINDRANATH CHOUBEY | of Directors, O.S.F.C. & Ors. (1999) 3 SCC 666 was also referred to in which it was held: 7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement. As there was no provision for conducting a disciplinary inquiry after retirement and that in case misconduct was established, a deduction could be made from the retiral benefits. Thus, it was held that retiral benefits could not have been deducted and became payable. The rule was different. (e) In Anant R. Kulkarni (supra), the decision in U.P. State Sugar Corporation Ltd. & Ors. v. Kamal Swaroop Tandon (2008) 2 SCC 41 was also considered in which the proceedings were initiated after retirement in which it was held that in case of retirement, master and servant relationship continue for grant of retiral benefits. Proceedings for recovery of financial loss from an employee was permissible even after his retirement. The case relates to the departmental inquiry to be instituted post- retirement for the financial loss caused during the course of employment. The question of dismissal did not arise as the inquiry was instituted after retirement. There cannot be any quarrel that it would depend upon the relevant rule. 10.29 On the basis of the abovementioned decisions in the State of Assam & Ors. v. Padma Ram Borah, State of Punjab v. Khemi Ram, Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors., Kirti Bhusan Singh v. State of Bihar, U.P. State Sugar Corporation Ltd. & Ors. v. Kamal Swaroop Tandon (supra) this court in Anant R. Kulkarni (supra) opined that relevant rules governing the service conditions of an employee are the determining factor as to whether or not the domestic inquiry can be held against an employee who stood retired after reaching the age of superannuation. To this extent, there is no problem caused by the aforesaid decision. However, this court made a general observation that if the inquiry had been initiated while the delinquent employee was in service, it would continue even after his retirement, but the nature of punishment would change. The punishment of dismissal, removal from service would not be imposed. The general observation made cannot come in the way of a specific rule and decision cannot be said to be of universal application and cannot be said to be binding in a case the rules provide legal fiction and continuance of employee in the service as if he had continued in service. 10.30 In view of the various decisions, it is apparent that under Rule 34.2 of the CDA Rules inquiry can be held in the same manner as if the employee had continued in service and the appropriate major and minor punishment commensurate to guilt can be imposed including dismissal as provided in Rule 27 of the CDA Rules and apart from that in case pecuniary loss had been caused that can be recovered. Gratuity can be forfeited wholly or partially. 10.31 Several service benefits would depend upon the outcome of the inquiry, such as concerning the period during which inquiry remained pending. It would be against the public policy to permit an employee to go scot-free after collecting various service benefits to which he would not be entitled, and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation, and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6) and Rule 34.3 in case of dismissal gratuity can be forfeited wholly or partially, and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act, 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation. We reiterate that the Act does not deal with the matter of disciplinary inquiry, it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation, intendment of the provisions of Section 4(6) would be defeated. The provisions of section 4(1) and 4(6) of Payment of Gratuity Act, 1972 have to be given purposive interpretation, and no way interdict holding of the departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act. 10.32 Thus considering the provisions of Rules 34.2 and 34.3 of the CDA Rules, the inquiry can be continued given the deeming fiction in the same manner as if the employee had continued in service and appropriate punishment, including that of dismissal can be imposed apart from the forfeiture of the gratuity wholly or partially including the recovery of the pecuniary loss as the case may be. | 0[ds]5.2 It is not in dispute that a chargesheet came to be served upon the respondent-employee much before he attained the age of superannuation, i.e., on 1.10.2007. That while the disciplinary proceedings were pending, the respondent-employee attained the age of superannuation on 31.07.2010. In view of the pendency of the disciplinary proceedings, the appellant-employer withheld the payment of gratuity7. Indisputably, the respondent was governed by the CDA Rules. Therefore, Rules 34.2 and 34.3 of the CDA Rules shall be applicable and the respondent-employee shall be governed by the said provisions. Rule 34 permits the management to withhold the gratuity during the pendency of the disciplinary proceedings. Rule 34.2 permits the disciplinary proceedings to be continued and concluded even after the employee has attained the age of superannuation, provided the disciplinary proceedings are instituted while the employee was in service. It also further provides that such disciplinary proceedings shall be deemed to be the proceedings and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service. Therefore, as such, on a fair reading of Rule 34.2 of the CDA Rules, an employee shall be deemed to be continued in service, after he attains the age of superannuation/retired, for the limited purpose of continuing and concluding the disciplinary proceedings which were instituted while the employee was in service. Therefore, at the conclusion of such disciplinary proceedings any of the penalty provided under Rule 27 of the CDA Rules can be imposed by the authority including the order of dismissal. If the submission on behalf of the employee that after the employee has attained the age of superannuation and/or he has retired from service, despite Rule 34.2, no order of penalty of dismissal can be passed is accepted, in that case, it will be frustrating permitting the authority to continue and conclude the disciplinary proceedings after retirement. If the order of dismissal cannot be passed after the employee has retired and/or has attained the age of superannuation in the disciplinary proceedings which were instituted while the employee was in service, in that case, there shall not be any fruitful purpose to continue and conclude the disciplinary proceedings in the same manner as if the employee had continued in service8. It is true that while considering the very provisions of the CDA Rules, namely, Rule 34.2 and Rule 34.3 of the CDA Rules, this Court in the case of Jaswant Singh Gill (supra) has observed and held that once the employee is permitted to retire on attaining the age of superannuation, thereafter no order of dismissal can be passed. However, for the reasons stated hereinabove, we are not in agreement with the view taken by this Court in the case of Jaswant Singh Gill (supra). As observed hereinabove, if no major penalty is permissible after retirement, even in a case where the disciplinary proceedings were instituted while the employee was in service, in that case, Rule 34.2 would become otiose and shall be meaningless. On the contrary, there is a decision of three Judge Bench of this Court in the case of Ram Lal Bhaskar (supra) taking just a contrary view9. Once it is held that a major penalty which includes the dismissal from service can be imposed, even after the employee has attained the age of superannuation and/or was permitted to retire on attaining the age of superannuation, provided the disciplinary proceedings were initiated while the employee was in service, sub-section 6 of Section 4 of the Payment of Gratuity Act shall be attracted and the amount of gratuity can be withheld till the disciplinary proceedings are concluded9.1 Even otherwise, Rule 34.3 of the CDA Rules permits withholding of the gratuity amount during the pendency of the disciplinary proceedings, for ordering recovering from gratuity of the whole or part of any pecuniary loss caused to the company if have been guilty of offences/misconduct as mentioned in sub- section 6 of Section 4 of the Payment of Gratuity Act, 1972 or to have caused pecuniary loss to the company by misconduct or negligence, during his service. It further makes clear that Rule 34.3 for withholding of such a gratuity would be subject to the provisions of Section 7(3) and 7(3A) of the Payment of Gratuity Act, 1972 in the event of delayed payment in the case of an employee who is fully exonerated. Rule 34.3 of the CDA Rules is in consonance with sub-section 6 of Section 4 of the Payment of Gratuity Act and there is no inconsistency between sub-section 6 of Section 4 of the Payment of Gratuity Act and Rule 34.3 of the CDA Rules. Therefore Section 14 of the Act which has been relied upon shall not be applicable as there is no inconsistency between the two provisions9.2 It is required to be noted that in the present case the disciplinary proceedings were initiated against the respondent- employee for very serious allegations of misconduct alleging dishonestly causing coal stock shortages amounting to Rs.31.65 crores and thereby causing substantial loss to the employer. Therefore, if such a charge is proved and punishment of dismissal is given thereon, the provisions of sub-section 6 of Section 4 of the Payment of Gratuity Act would be attracted and it would be within the discretion of the appellant-employer to forfeit the gratuity payable to the respondent. Therefore, the appellant-employer has a right to withhold the payment of gratuity during the pendency of the disciplinary proceedings10.15 In Ram Lal Bhaskar (supra), the employee was in service when the inquiry was initiated. He was dismissed from service after attaining the age of superannuation. This court considered the argument that the order of the appellate authority was illegal and without jurisdiction. The Rules provided that disciplinary proceedings could be continued in the same manner as if the officer continued to be in service. Thus, it was held that the employee was deemed to be in service for the continuance of proceedings. No merit was found in the submission that inquiry and order of dismissal passed after superannuation was illegal and without jurisdiction. The relevant discussion is extracted hereunder:8. The learned counsel for Respondent 1, on the other hand, supported the impugned order of the High Court and submitted that there is no infirmity in the impugned order of the High Court. He further submitted that in any case Respondent 1 had retired from service on 31-1-2000, and though the charge-sheet was served on him on 22-12-1999 when he was still in service, the enquiry report was served on him by letter dated 28-9-2000 and he was dismissed from service on 15-5-2001 after he had retired from service. He submitted that after the retirement of Respondent 1, the appellant had no jurisdiction to continue with the enquiry against Respondent 1. In support of this contention, he cited the decision of this Court in UCO Bank v. Rajinder Lal Capoor (2007) 6 SCC 694 9. We have perused the decision of this Court in UCO Bank v. Rajinder Lal Capoor and we find that in the facts of that case the delinquent officer had already superannuated on 1-11-1996 and the charge-sheet was issued after his superannuation on 13-11- 1998 and this Court held that the delinquent officer having been allowed to superannuate, the charge-sheet, the enquiry report and the orders of the disciplinary authority and the appellate authority must be held to be illegal and without jurisdiction. In the facts of the present case, on the other hand, we find that the charge-sheet was issued on 22-12-1999 when Respondent was in service and there were clear provisions in Rule 19(3) of the State Bank of India Officers Service Rules, 1992, that in case disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceased to be in the banks service by the operation of, or by virtue of, any of the rules or the provisions of the Rules, the disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by whom the proceedings were initiated in the manner provided for in the Rules as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings10. We may mention here that a similar provision was also relied on behalf of UCO Bank in UCO Bank v. Rajinder Lal Capoor (supra) in Regulation 20(3)(iii) of the UCO Bank Officer Employees Service Regulations, 1979, but this Court held that the aforesaid regulation could be invoked only when the disciplinary proceedings had been initiated prior to the delinquent officer ceased to be in service. Thus, the aforesaid decision of this Court in UCO Bank v. Rajinder Lal Capoor (supra) does not support Respondent 1 and there is no merit in the contention of the counsel for Respondent 1 that the enquiry and the order of dismissal were illegal and without jurisdictionIn the instant case, Rule 34.2 of the CDA Rules holds the field and is binding, in the absence of any statutory interdiction made by any other provision regarding continuance of the inquiry and for taking it to a logical end in terms of the deemed continuation of the employee in service. Decision of this Court in the case of Ram Lal Bhaskar (supra) is by a three Judge Bench, which is binding10.16 The reliance placed on the provision contained in section 4(6) of the Payment of Gratuity Act, 1972, is devoid of substance. The Act is to provide for a scheme for payment of gratuity to the employees. Section 2(A) of the Act specifies the continuous service and what would amount to interruption and exclusion therefrom. An employee in continuous service, within the meaning of section 2(A)(1), for one year or six months, as provided, shall be deemed to be in continuous service. Section 3 deals with the appointment of the Controlling Authority. Section 4 deals with the payment of gratuity. Section 4(1) provides that gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, on his superannuation, or retirement or resignation, or his death or disablement due to accident or disease. Five years of continuous service shall not be necessary in case a person ceased to be in service due to death or disability. Section 4(2) provides for entitlement of gratuity for every completed year of service or part thereof, in excess of six months, the employer shall pay gratuity at the rate of fifteen days wages based on the rate of wages last drawn by the employee concerned. Section 4(5) provides that nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer. What is ensured under the Act is the minimum amount of gratuity10.17 Section 4 provides for payment of gratuity. Section 4(6) contains a non-obstante clause to sub-section 1. In case of service of the employee have been terminated for wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, gratuity shall be forfeited to the extent of the damage or loss so caused as provided under section 4(6)(a). Even in the absence of loss or damage, gratuity can be wholly or partially forfeited under the provisions of section 4(6)(b), in case termination of services was based upon disorderly conduct or act of violence on his part or offence involving moral turpitude committed during the course of employment. Thus, it is apparent that not only damage or loss can be recovered, but gratuity can be wholly or partially withheld in case services are terminated for the reasons specified in section 4(6)(b)10.18 The Payment of Gratuity Act, 1972, makes no provision with respect to departmental inquiries. Since no statutory provisions of the Payment of Gratuity Act, 1972 come in the way of the CDA Rules to continue the inquiry after superannuation of the employee in case it was instituted while he was in service and his deemed continuance in service; thus, no fetter is caused upon operation of Rule 34.2 providing for a continuation of the inquiry and deemed continuation of the employee in service after the age of superannuation10.21 In view of the various decisions of this Court and considering the provisions in rules in question, it is apparent that the punishment which is prescribed under Rule 27 of the CDA Rules, minor as well as major, both can be imposed. Apart from that, recovery can also be made of the pecuniary loss caused as provided in Rule 34.3 of the CDA Rules, which takes care of the provision under sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972. The recovery is in addition to a punishment that can be imposed after attaining the age of superannuation. The legal fiction provided in Rules 34.2 of the CDA Rules of deemed continuation in service has to be given full effect10.23 It is a settled proposition of law that in case of termination of service there is a distinction as to whether it is a simpliciter termination or a punitive dismissal and this court can lift the veil and find out the real nature of termination whether it is simpliciter termination or punitive dismissal as held in B.T. Krishnamurthy v. Sri Basaveswara Education Society (2013) 4 SCC 490 , Paramjit Singh v. Director of Schools (Public Instructions), (2010) 14 SCC 416 , State of U.P. v. Ram Vinai Sinha, (2010) 15 SCC 305 , Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corpn. (2007) 10 SCC 71 , the State of Punjab v. Rajesh Kumar (2006) 12 SCC 418 , Jai Singh v. Union of India (2006) 9 SCC 717 10.25 Section 4(1) deals with normal superannuation and does not cover the cases where the departmental inquiry is pending, or dismissal had been ordered. It did not interdict the departmental inquiry if it was initiated while the employee was in service and continued after superannuation as if the employee continued in service. Section 4 of the Payment of Gratuity Act, 1972 contains no bar, and purposive construction has to be made of the provisions contained in section 4(1). Section 4(6) provides where particular misconduct is found established, how gratuity to be dealt with, but provisions cause no fetter on the power of an employer to impose a punishment of dismissal. It makes no provision in particular with respect to the departmental inquiry but rather buttresses the power of an employer to forfeit gratuity wholly or partially or to recover loss provided in Section 4(6). Neither the provisions in section 4(1) nor section 4(6) of the Payment of Gratuity Act create embargo on the departmental inquiry and its continuance after superannuation. Thus, provisions of Rule 34.2 of the CDA Rules would prevail. Even the executive instruction can hold the field in the absence of statutory rules and are equally binding as laid down in State of Madhya Pradesh and Anr. v. Kumari Nivedita Jain and Ors., (1981) 4 SCC 296 , State of Andhra Pradesh and Anr. v. Lavu Narendranath and Ors. etc., AIR 1971 SC 2560 , Distt. Registrar, Palghat and Ors. v. M.B. Koyakutty and Ors., (1979) 2 SCC 150 , Union of India and Anr. v. Tulsiram Patel, AIR 1985 SC 1416 . This Court held that only when statutory provision is otherwise, executive instructions cannot prevail. In our opinion, no dint is caused by the Payment of Gratuity Act, 1972, and the efficacy of Rules is not adversely affected on the proper interpretation of Section 4(1) and 4(6) of the Act of 197210.27 In Jaswant Singh Gill v. Bharat Coking Coal Ltd. (2007) 1 SCC 663 , it was held that the provisions of section 4(6) of the Payment of Gratuity Act, 1972 would prevail over the non- statutory Bharat Coking Coal Ltd. - a subsidiary of Coal India Ltd. Rules 34.2 and 34.3 and provisions of Payment of Gratuity Act, 1972, were considered. It was held that even if the disciplinary inquiry was initiated before attaining the age of superannuation, if the employee attains the age of superannuation, the question of imposing a major penalty by removal or dismissal from service would not arise. Once the employee had retired and his services had not been extended for the purpose of imposing punishment, a major penalty could not be imposed. It was also held that the rule framed by Coal India Ltd. are non-statutory rules, and in view of the provisions of the Payment of Gratuity Act, 1972, they cannot prevail. In the said case, the order of dismissal was passed after the age of superannuation. It was found that misconduct did not cover the grounds mentioned in section 4(6)(a) for recovery of the loss, nor it was the case of misconduct in which gratuity could have been withheld wholly or partially in the exigencies as provided in section 4(6)(b). We find it difficult to agree with the said decision as Rules hold the field and are not repugnant to provisions of the Payment of Gratuity Act, 1972. This Court held that Rules could not hold the field as they were not statutory; thus, the effect of the rule providing of deeming legal fiction as if he had continued in the service notwithstanding crossing the age of superannuation was not considered. Apart from that, the validity of Rules 34.2 or 34.3 could not have been decided as it was not in question in the said case. The Controlling Authority and the Appellate Authority ordered the payment of gratuity. The main ground employed was that in the order passed by the departmental authority, the quantum of damage or loss caused was not indicated, and it was not the case covered by Section 4(6) (a) and 4(6)(b). A writ petition filed by the employer was dismissed. However, the Intra Court Appeal was allowed, and it was opined that the Controlling Authority could not have gone into the validity of the dismissal order and forfeiture of the gratuity since it was not an appellate authority of disciplinary authority imposing the punishment of dismissal. Thus, the jurisdictional scope in the Jaswant Singh Gill case (supra) was limited. We are unable to agree with the decision rendered in Jaswant Singh Gill case (supra) inter alia for the following reasons:(i) The order of termination was not questioned, nor the authority under the Payment of Gratuity Act, 1972, had jurisdiction to deal with it(ii) The validity or enforceability and vires of service Rules 34.2 and 34.3 were not questioned(iii) The Controlling Authority under the Payment of Gratuity Act, 1972, had no jurisdiction to go into the legality of order of the disciplinary authority(iv) The scope of the case before this Court was confined to validity of order of Controlling Authority and to questions which could have been dealt with by Controlling Authority(v) No fetter is caused on the efficacy of the Rules by Section 4(1) and 4(6) of the Payment of Gratuity Act, 1972. The Rules need not be statutory to have efficacy as they are not repugnant to the Payment of Gratuity Act, 1972. This Court did not consider the scope of provisions of the Gratuity Act and provisions of Rule 34.2, providing legal fiction of employee deemed to be in service even after superannuation(vi) The Controlling Authority had no jurisdiction to deal with Rules 34.2 and 34.3 or to pronounce upon validity thereof or of dismissal. Thus, the observations made, traveling beyond the scope of the proceedings, cannot be said to be binding and cannot constitute the ratio with respect to continuance of departmental inquiry after superannuation and what kind of punishment can be imposed by an employer. The jurisdiction of authority was only to consider payment of gratuity under Section 4(6) of the Payment of Gratuity Act, 1972Thus, we overrule the decision in Jaswant Singh Gill (supra)The decision is of no avail, in view of the rule in question, which provides for legal fiction with respect to continuance in service, and it has to be given full effect to the ratio of decision negate the submission of the employee10.29 On the basis of the abovementioned decisions in the State of Assam & Ors. v. Padma Ram Borah, State of Punjab v. Khemi Ram, Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors., Kirti Bhusan Singh v. State of Bihar, U.P. State Sugar Corporation Ltd. & Ors. v. Kamal Swaroop Tandon (supra) this court in Anant R. Kulkarni (supra) opined that relevant rules governing the service conditions of an employee are the determining factor as to whether or not the domestic inquiry can be held against an employee who stood retired after reaching the age of superannuation. To this extent, there is no problem caused by the aforesaid decision. However, this court made a general observation that if the inquiry had been initiated while the delinquent employee was in service, it would continue even after his retirement, but the nature of punishment would change. The punishment of dismissal, removal from service would not be imposed. The general observation made cannot come in the way of a specific rule and decision cannot be said to be of universal application and cannot be said to be binding in a case the rules provide legal fiction and continuance of employee in the service as if he had continued in service10.30 In view of the various decisions, it is apparent that under Rule 34.2 of the CDA Rules inquiry can be held in the same manner as if the employee had continued in service and the appropriate major and minor punishment commensurate to guilt can be imposed including dismissal as provided in Rule 27 of the CDA Rules and apart from that in case pecuniary loss had been caused that can be recovered. Gratuity can be forfeited wholly or partially10.31 Several service benefits would depend upon the outcome of the inquiry, such as concerning the period during which inquiry remained pending. It would be against the public policy to permit an employee to go scot-free after collecting various service benefits to which he would not be entitled, and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation, and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6) and Rule 34.3 in case of dismissal gratuity can be forfeited wholly or partially, and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act, 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation. We reiterate that the Act does not deal with the matter of disciplinary inquiry, it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation, intendment of the provisions of Section 4(6) would be defeated. The provisions of section 4(1) and 4(6) of Payment of Gratuity Act, 1972 have to be given purposive interpretation, and no way interdict holding of the departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act10.32 Thus considering the provisions of Rules 34.2 and 34.3 of the CDA Rules, the inquiry can be continued given the deeming fiction in the same manner as if the employee had continued in service and appropriate punishment, including that of dismissal can be imposed apart from the forfeiture of the gratuity wholly or partially including the recovery of the pecuniary loss as the case may be. | 0 | 26,089 | 4,569 | ### Instruction:
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of Directors, O.S.F.C. & Ors. (1999) 3 SCC 666 was also referred to in which it was held: 7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement. As there was no provision for conducting a disciplinary inquiry after retirement and that in case misconduct was established, a deduction could be made from the retiral benefits. Thus, it was held that retiral benefits could not have been deducted and became payable. The rule was different. (e) In Anant R. Kulkarni (supra), the decision in U.P. State Sugar Corporation Ltd. & Ors. v. Kamal Swaroop Tandon (2008) 2 SCC 41 was also considered in which the proceedings were initiated after retirement in which it was held that in case of retirement, master and servant relationship continue for grant of retiral benefits. Proceedings for recovery of financial loss from an employee was permissible even after his retirement. The case relates to the departmental inquiry to be instituted post- retirement for the financial loss caused during the course of employment. The question of dismissal did not arise as the inquiry was instituted after retirement. There cannot be any quarrel that it would depend upon the relevant rule. 10.29 On the basis of the abovementioned decisions in the State of Assam & Ors. v. Padma Ram Borah, State of Punjab v. Khemi Ram, Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors., Kirti Bhusan Singh v. State of Bihar, U.P. State Sugar Corporation Ltd. & Ors. v. Kamal Swaroop Tandon (supra) this court in Anant R. Kulkarni (supra) opined that relevant rules governing the service conditions of an employee are the determining factor as to whether or not the domestic inquiry can be held against an employee who stood retired after reaching the age of superannuation. To this extent, there is no problem caused by the aforesaid decision. However, this court made a general observation that if the inquiry had been initiated while the delinquent employee was in service, it would continue even after his retirement, but the nature of punishment would change. The punishment of dismissal, removal from service would not be imposed. The general observation made cannot come in the way of a specific rule and decision cannot be said to be of universal application and cannot be said to be binding in a case the rules provide legal fiction and continuance of employee in the service as if he had continued in service. 10.30 In view of the various decisions, it is apparent that under Rule 34.2 of the CDA Rules inquiry can be held in the same manner as if the employee had continued in service and the appropriate major and minor punishment commensurate to guilt can be imposed including dismissal as provided in Rule 27 of the CDA Rules and apart from that in case pecuniary loss had been caused that can be recovered. Gratuity can be forfeited wholly or partially. 10.31 Several service benefits would depend upon the outcome of the inquiry, such as concerning the period during which inquiry remained pending. It would be against the public policy to permit an employee to go scot-free after collecting various service benefits to which he would not be entitled, and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation, and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6) and Rule 34.3 in case of dismissal gratuity can be forfeited wholly or partially, and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act, 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation. We reiterate that the Act does not deal with the matter of disciplinary inquiry, it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation, intendment of the provisions of Section 4(6) would be defeated. The provisions of section 4(1) and 4(6) of Payment of Gratuity Act, 1972 have to be given purposive interpretation, and no way interdict holding of the departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act. 10.32 Thus considering the provisions of Rules 34.2 and 34.3 of the CDA Rules, the inquiry can be continued given the deeming fiction in the same manner as if the employee had continued in service and appropriate punishment, including that of dismissal can be imposed apart from the forfeiture of the gratuity wholly or partially including the recovery of the pecuniary loss as the case may be.
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limited. We are unable to agree with the decision rendered in Jaswant Singh Gill case (supra) inter alia for the following reasons:(i) The order of termination was not questioned, nor the authority under the Payment of Gratuity Act, 1972, had jurisdiction to deal with it(ii) The validity or enforceability and vires of service Rules 34.2 and 34.3 were not questioned(iii) The Controlling Authority under the Payment of Gratuity Act, 1972, had no jurisdiction to go into the legality of order of the disciplinary authority(iv) The scope of the case before this Court was confined to validity of order of Controlling Authority and to questions which could have been dealt with by Controlling Authority(v) No fetter is caused on the efficacy of the Rules by Section 4(1) and 4(6) of the Payment of Gratuity Act, 1972. The Rules need not be statutory to have efficacy as they are not repugnant to the Payment of Gratuity Act, 1972. This Court did not consider the scope of provisions of the Gratuity Act and provisions of Rule 34.2, providing legal fiction of employee deemed to be in service even after superannuation(vi) The Controlling Authority had no jurisdiction to deal with Rules 34.2 and 34.3 or to pronounce upon validity thereof or of dismissal. Thus, the observations made, traveling beyond the scope of the proceedings, cannot be said to be binding and cannot constitute the ratio with respect to continuance of departmental inquiry after superannuation and what kind of punishment can be imposed by an employer. The jurisdiction of authority was only to consider payment of gratuity under Section 4(6) of the Payment of Gratuity Act, 1972Thus, we overrule the decision in Jaswant Singh Gill (supra)The decision is of no avail, in view of the rule in question, which provides for legal fiction with respect to continuance in service, and it has to be given full effect to the ratio of decision negate the submission of the employee10.29 On the basis of the abovementioned decisions in the State of Assam & Ors. v. Padma Ram Borah, State of Punjab v. Khemi Ram, Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors., Kirti Bhusan Singh v. State of Bihar, U.P. State Sugar Corporation Ltd. & Ors. v. Kamal Swaroop Tandon (supra) this court in Anant R. Kulkarni (supra) opined that relevant rules governing the service conditions of an employee are the determining factor as to whether or not the domestic inquiry can be held against an employee who stood retired after reaching the age of superannuation. To this extent, there is no problem caused by the aforesaid decision. However, this court made a general observation that if the inquiry had been initiated while the delinquent employee was in service, it would continue even after his retirement, but the nature of punishment would change. The punishment of dismissal, removal from service would not be imposed. The general observation made cannot come in the way of a specific rule and decision cannot be said to be of universal application and cannot be said to be binding in a case the rules provide legal fiction and continuance of employee in the service as if he had continued in service10.30 In view of the various decisions, it is apparent that under Rule 34.2 of the CDA Rules inquiry can be held in the same manner as if the employee had continued in service and the appropriate major and minor punishment commensurate to guilt can be imposed including dismissal as provided in Rule 27 of the CDA Rules and apart from that in case pecuniary loss had been caused that can be recovered. Gratuity can be forfeited wholly or partially10.31 Several service benefits would depend upon the outcome of the inquiry, such as concerning the period during which inquiry remained pending. It would be against the public policy to permit an employee to go scot-free after collecting various service benefits to which he would not be entitled, and the event of superannuation cannot come to his rescue and would amount to condonation of guilt. Because of the legal fiction provided under the rules, it can be completed in the same manner as if the employee had remained in service after superannuation, and appropriate punishment can be imposed. Various provisions of the Gratuity Act discussed above do not come in the way of departmental inquiry and as provided in Section 4(6) and Rule 34.3 in case of dismissal gratuity can be forfeited wholly or partially, and the loss can also be recovered. An inquiry can be continued as provided under the relevant service rules as it is not provided in the Payment of Gratuity Act, 1972 that inquiry shall come to an end as soon as the employee attains the age of superannuation. We reiterate that the Act does not deal with the matter of disciplinary inquiry, it contemplates recovery from or forfeiture of gratuity wholly or partially as per misconduct committed and does not deal with punishments to be imposed and does not supersede the Rules 34.2 and 34.3 of the CDA Rules. The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation, intendment of the provisions of Section 4(6) would be defeated. The provisions of section 4(1) and 4(6) of Payment of Gratuity Act, 1972 have to be given purposive interpretation, and no way interdict holding of the departmental inquiry and punishment to be imposed is not the subject matter dealt with under the Act10.32 Thus considering the provisions of Rules 34.2 and 34.3 of the CDA Rules, the inquiry can be continued given the deeming fiction in the same manner as if the employee had continued in service and appropriate punishment, including that of dismissal can be imposed apart from the forfeiture of the gratuity wholly or partially including the recovery of the pecuniary loss as the case may be.
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Unichem Laboratories Ltd Vs. The Workmen | of the Indian owned units have adopted the slab system. But whether these units have adopted or not, we have already indicated, that no distinction can be made between a purely local unit and a foreign unit doing business in India or an Indian unit doing business in collaboration with foreign concern. When once such units can be taken into account as comparable units, the pattern of dearness allowance obtaining therein can very well be considered to ascertain the system adopted by the industry as that will show the trend in the region. As pointed out above, at least 11 units referred to in Ex. DU-1 have adopted the system now introduced in the case of the appellant by the Tribunal. Under those circumstances, when such system is prevailing in the industry in the same region, it cannot be held that the Tribunal has committed any error in introducing a similar pattern in the case of the appellant. The slab system has been approved by this Court as will be seen by the decision in Greaves Cotton and Co. and others v. Their Workmen, [1964 - I L.L.J. 342]; (1964) 3 S.C.R. 362, and Bengal Chemical and Pharmaceutical Works Ltd. v. Its Workmen, [1969 - I L.L.J. 751]; (1969) 2 S.C.R. 463. Even in Bombay that such a pattern of dearness allowance, as the one introduced in the case of the appellant, is existing is seen by the decisions of this Court in Greaves Cotton and Co. and others v. Their Workmen (supra) and Kamani Metals & Alloys Ltd. v. Their Workmen, [1967 - II L.L.J. 55]; (1967) 2 S.C.R. 463. No doubt the industries therein were not pharmaceutical units. But that such a system exists in Bombay region is clear from the above decision. 115. Mr. Tarkunde referred us to the award of the Industrial Tribunal in Reference (I.T. No. 411 of 1966) in Voltas Limited, Bombay v. The Workmen employed under them dated September 30, 1969, wherein the adoption of slab system has not been approved. On the other hand, Mrs. Urmila Kapoor, learned counsel for respondent No. 2, has drawn our attention to a number of awards of the Industrial Tribunal rendered during the years 1965 to 1968 wherein the slab system of dearness allowance has been adopted in Bombay region. It is only necessary to refer to the award in the case of May and Baker Limited, Bombay v. Its Workmen, because that is a pharmaceutical unit. The award was given in or about June 1967 and it is seen that the dearness allowance on the pattern now given by the Tribunal in respect of the appellant has been adopted. 116. We have already referred to the fact that in Ex. DU-1 it is seen that as many as 11 pharmaceutical units in Bombay region have adopted the pattern of granting dearness allowance on the slab system now incorporated in the present award. Though most of the units referred to therein could not be treated as units comparable with the appellant because of lack of full information regarding material factors, yet those concerns can be taken into account inasmuch as the system obtaining in those concerns will show that the slab system is not something new to the pharmaceutical units. We have already referred to the award in May and Baker Limited, Bombay v. Its Workmen. These facts clearly show that the scheme of dearness allowance provided in the award before us in respect of the appellant is not anything new. On the other hand, the Tribunal has only adopted the system prevailing in the region in respect of pharmaceutical units. 117. So far as the financial burden is concerned we have already referred to the findings recorded by the Tribunal. Even on the basis that the Tribunal was not justified in proceeding on the assumption that 52 chemists are not covered by the reference, in our opinion, the additional burden that will be cast on the appellant can be easily borne by it. Therefore, we see no error in the scheme of dearness allowance introduced, in the case of the appellant, by the Tribunal. 118. The only other point that requires to be considered is in respect of the direction given by the Tribunal regarding the incentive bonus scheme in respect of which the appellant had given notice of change under S.9A of the Industrial Disputes Act, 1947. We have already referred to the nature of the scheme that originally existed and the modification sought to be made by the appellant. We have also pointed out that the Tribunal has not accepted most of the recommendations made by Sri Tulpule, who was appointed as an assessor on the joint application of both the parties. The Tribunal has stated that it is desirable that a scheme is worked out, if possible by consent of parties for the purpose of protecting the interest of the workmen at the increased base performance index. 119. According to Mr. Tarkunde the Tribunal itself should have gone into the matter and evolved a scheme. No doubt, it would have been desirable if the Tribunal had actually evolved a scheme. But the Tribunal has stated that the necessary material for that purpose has not been made available and as such it has not been possible to device a scheme calculated to afford protection to the incentive earning of a workman at the raised base performance index. In fact, we also suggested to the counsel that the parties may consider the matter and submit a scheme for that purpose. But it was represented to us on February 9, 1972, by Mrs. Urmila Kapoor, learned counsel for respondent No. 2, that it has not been possible for the parties to arrive at an agreement in respect of that matter, at present. Therefore, there is nothing further that could be done by this Court in this regard and the result is that the observations made by the Tribunal in this regard will have full effect. | 0[ds]27. The parties very hotly contested the question of dearness allowance as well as the pattern to be adopted. As there were different systems of dearness allowance for the operatives and the clerical and subordinate staff, the unions desired that the common scheme of dearness allowance on a slab system should be adopted. The Tribunal having regard to the decisions of this Court in Greaves Cotton and Co. and others v. Their Workmen, [1964 - I L.L.J. 342]; (1964) 5 S.C.R. 362, and Bengal Chemical & Pharmaceutical Works Ltd. v. Its Workmen, [1969 - I L.L.J. 751]; (1969) 2 S.C.R. 113, held that there was no justification for having two systems of dearness allowance, one for the operatives and the other for the members of the clerical and subordinate staff. Accordingly, the Tribunal held that all the employees should get the same dearness allowance irrespective of the fact whether they were operatives or members of the clerical and subordinate staff. | 0 | 17,822 | 190 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
of the Indian owned units have adopted the slab system. But whether these units have adopted or not, we have already indicated, that no distinction can be made between a purely local unit and a foreign unit doing business in India or an Indian unit doing business in collaboration with foreign concern. When once such units can be taken into account as comparable units, the pattern of dearness allowance obtaining therein can very well be considered to ascertain the system adopted by the industry as that will show the trend in the region. As pointed out above, at least 11 units referred to in Ex. DU-1 have adopted the system now introduced in the case of the appellant by the Tribunal. Under those circumstances, when such system is prevailing in the industry in the same region, it cannot be held that the Tribunal has committed any error in introducing a similar pattern in the case of the appellant. The slab system has been approved by this Court as will be seen by the decision in Greaves Cotton and Co. and others v. Their Workmen, [1964 - I L.L.J. 342]; (1964) 3 S.C.R. 362, and Bengal Chemical and Pharmaceutical Works Ltd. v. Its Workmen, [1969 - I L.L.J. 751]; (1969) 2 S.C.R. 463. Even in Bombay that such a pattern of dearness allowance, as the one introduced in the case of the appellant, is existing is seen by the decisions of this Court in Greaves Cotton and Co. and others v. Their Workmen (supra) and Kamani Metals & Alloys Ltd. v. Their Workmen, [1967 - II L.L.J. 55]; (1967) 2 S.C.R. 463. No doubt the industries therein were not pharmaceutical units. But that such a system exists in Bombay region is clear from the above decision. 115. Mr. Tarkunde referred us to the award of the Industrial Tribunal in Reference (I.T. No. 411 of 1966) in Voltas Limited, Bombay v. The Workmen employed under them dated September 30, 1969, wherein the adoption of slab system has not been approved. On the other hand, Mrs. Urmila Kapoor, learned counsel for respondent No. 2, has drawn our attention to a number of awards of the Industrial Tribunal rendered during the years 1965 to 1968 wherein the slab system of dearness allowance has been adopted in Bombay region. It is only necessary to refer to the award in the case of May and Baker Limited, Bombay v. Its Workmen, because that is a pharmaceutical unit. The award was given in or about June 1967 and it is seen that the dearness allowance on the pattern now given by the Tribunal in respect of the appellant has been adopted. 116. We have already referred to the fact that in Ex. DU-1 it is seen that as many as 11 pharmaceutical units in Bombay region have adopted the pattern of granting dearness allowance on the slab system now incorporated in the present award. Though most of the units referred to therein could not be treated as units comparable with the appellant because of lack of full information regarding material factors, yet those concerns can be taken into account inasmuch as the system obtaining in those concerns will show that the slab system is not something new to the pharmaceutical units. We have already referred to the award in May and Baker Limited, Bombay v. Its Workmen. These facts clearly show that the scheme of dearness allowance provided in the award before us in respect of the appellant is not anything new. On the other hand, the Tribunal has only adopted the system prevailing in the region in respect of pharmaceutical units. 117. So far as the financial burden is concerned we have already referred to the findings recorded by the Tribunal. Even on the basis that the Tribunal was not justified in proceeding on the assumption that 52 chemists are not covered by the reference, in our opinion, the additional burden that will be cast on the appellant can be easily borne by it. Therefore, we see no error in the scheme of dearness allowance introduced, in the case of the appellant, by the Tribunal. 118. The only other point that requires to be considered is in respect of the direction given by the Tribunal regarding the incentive bonus scheme in respect of which the appellant had given notice of change under S.9A of the Industrial Disputes Act, 1947. We have already referred to the nature of the scheme that originally existed and the modification sought to be made by the appellant. We have also pointed out that the Tribunal has not accepted most of the recommendations made by Sri Tulpule, who was appointed as an assessor on the joint application of both the parties. The Tribunal has stated that it is desirable that a scheme is worked out, if possible by consent of parties for the purpose of protecting the interest of the workmen at the increased base performance index. 119. According to Mr. Tarkunde the Tribunal itself should have gone into the matter and evolved a scheme. No doubt, it would have been desirable if the Tribunal had actually evolved a scheme. But the Tribunal has stated that the necessary material for that purpose has not been made available and as such it has not been possible to device a scheme calculated to afford protection to the incentive earning of a workman at the raised base performance index. In fact, we also suggested to the counsel that the parties may consider the matter and submit a scheme for that purpose. But it was represented to us on February 9, 1972, by Mrs. Urmila Kapoor, learned counsel for respondent No. 2, that it has not been possible for the parties to arrive at an agreement in respect of that matter, at present. Therefore, there is nothing further that could be done by this Court in this regard and the result is that the observations made by the Tribunal in this regard will have full effect.
### Response:
0
### Explanation:
27. The parties very hotly contested the question of dearness allowance as well as the pattern to be adopted. As there were different systems of dearness allowance for the operatives and the clerical and subordinate staff, the unions desired that the common scheme of dearness allowance on a slab system should be adopted. The Tribunal having regard to the decisions of this Court in Greaves Cotton and Co. and others v. Their Workmen, [1964 - I L.L.J. 342]; (1964) 5 S.C.R. 362, and Bengal Chemical & Pharmaceutical Works Ltd. v. Its Workmen, [1969 - I L.L.J. 751]; (1969) 2 S.C.R. 113, held that there was no justification for having two systems of dearness allowance, one for the operatives and the other for the members of the clerical and subordinate staff. Accordingly, the Tribunal held that all the employees should get the same dearness allowance irrespective of the fact whether they were operatives or members of the clerical and subordinate staff.
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Raju Vs. State of M.P | Prasad, therefore, went to Udaipur along with another driver and got his vehicle released. The vehicle contained goods for Pune so he engaged another driver and cleaner and sent the vehicle to Pune. He asked the other driver by name Zakir regarding Rajus whereabouts and was told that Raju had left Udaipur saying that he is going to meet the owner. Zakir also said that he had not met the deceased Niranjan Singh. Thereafter, Ganesh Prasad, the owner of the truck had been informed by Raju that Niranjan Singh had fallen ill and medicines are being administered to him.3. A complaint was lodged by father of Niranjan Singh that his son was missing. Eventually, Ganesh Prasad, the owner of the vehicle along with Phool Singh Rana, the father of Niranjan Singh and 3-4 other persons went to search for Raju at his village Dharampur. He was seen driving a tractor and was wearing the shirt of the deceased. The appellant said that he left Niranjan Singh at Delhi because he was ill. When asked about the explanation for the shirt of the deceased on him, he confessed that he had killed Niranjan Singh near Ghatigaon and the dead body has been thrown in Deopura located in the ravines of Chambal. He also stated that he had taken an amount of Rs. 7,000/- from the pocket of the deceased along with his driving licence and a diary. An FIR was lodged on 19.11.1999 at P.S. Morar.4. During the course of investigation, a skeleton in a highly decomposed state wearing a shirt, banian and underwear was found in a ditch at the instance of the appellant. The appellant also led to the discovery of driving licence and diary of the accused.5. The prosecution examined as many as 16 witnesses. The most crucial witness for the prosecution is Ganesh Prasad (PW-8), the owner of the truck. As observed earlier, the trial Court and the High Court have both convicted the appellant. 6. We have heard learned counsel appearing for both the parties. 7. We find that the case rests mainly on circumstantial evidence and the burden has been properly discharged by the prosecution. There is no doubt about whom the deceased was last seen with. The owner of the truck has himself stated that he had sent Raju along with the deceased on truck from Gwalior to Bhopal. This fact having been admitted, it is obvious that it was for Raju to explain as to what happened to Niranjan Singh. That he has failed to do. 8. The High Court dealt with the following aspects in its judgment: (i) appellant was seen last in the company of the deceased; (ii) suspicious conduct of the appellant by setting forth false story; (iii) after discharging his duties as clearner, appellant did not resume the work place of his master Ganesh Prasad; 9. We are in entire agreement with the High Court that when all the circumstances are considered together they form a complete chain unerringly pointing to the guilt of the accused. 10. As observed earlier, there is no doubt that the appellant was last seen in the company of the deceased and, in fact, he cooked up a false story which makes his conduct suspicious. The false story lies in the telephone call to the owner that the deceased had fallen ill and again on the next day, another phone call to the owner that he is going to Pune with the goods and on the other hand, employing another driver and himself fleeing. The appellant did not thereafter return to resume his duties as a cleaner in the employment of Ganesh Prasad but went to his village Dharampur where he was discovered by Ganesh Prasad and others, as stated above. There was no reason for him to act in the above manner except to hide his foul deeds. 11. The High Court also dealt with the following aspects in its judgment: (iv) recovery of skeleton at the instance of the appellant; (v) recovery of other articles from appellant; and (vi) extra judicial confession of the appellant. 12. A skeleton was recovered in the Chambal ravines in a ditch about 200 feet deep and in a highly decomposed state. Learned counsel for the appellant vehemently argued that the skeleton has not been identified, in fact it was not possible to make out that it was a skeleton of a man or a woman. Much less could it be said, therefore, that it was of the deceased. This argument is of no avail to the appellant in this case since it would not have been possible to discover the skeleton at all unless someone who had knowledge about it led to its discovery. The appellant undoubtedly knew where he had thrown the dead body of Niranjan Singh with whom he had gone on the truck from Gwalior to Bhopal. 13. A Similar inference is liable to be drawn in regard to the other discovery at the instance of the appellant, namely, the driving licence and pocket diary of the deceased and the iron rod. The first two articles could only have been with the deceased; or with someone who had taken it from the deceased. We have thus, no doubt of the appellants guilt. 14. At this stage, learned counsel appearing for the appellant, who ably assisted the Court, submitted that the owner of the truck had a motive to falsely implicate the appellant. According to the learned counsel, the appellant had dis-agreement with the owner who had, in fact, driven him away after beating him and later on called him to implicate him falsely. This statement made by the appellant in its defence under Section 313 sounds hollow and we have no hesitation in rejecting the explanation. 15. We find that there is no reason for the owner of the truck to falsely implicate the appellant.16. In the result, we find that the chain of circumstances unerringly pointing towards the guilt of the appellant. | 0[ds]15. We find that there is no reason for the owner of the truck to falsely implicate the appellant.16. In the result, we find that the chain of circumstances unerringly pointing towards the guilt of the appellant. | 0 | 1,262 | 45 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
Prasad, therefore, went to Udaipur along with another driver and got his vehicle released. The vehicle contained goods for Pune so he engaged another driver and cleaner and sent the vehicle to Pune. He asked the other driver by name Zakir regarding Rajus whereabouts and was told that Raju had left Udaipur saying that he is going to meet the owner. Zakir also said that he had not met the deceased Niranjan Singh. Thereafter, Ganesh Prasad, the owner of the truck had been informed by Raju that Niranjan Singh had fallen ill and medicines are being administered to him.3. A complaint was lodged by father of Niranjan Singh that his son was missing. Eventually, Ganesh Prasad, the owner of the vehicle along with Phool Singh Rana, the father of Niranjan Singh and 3-4 other persons went to search for Raju at his village Dharampur. He was seen driving a tractor and was wearing the shirt of the deceased. The appellant said that he left Niranjan Singh at Delhi because he was ill. When asked about the explanation for the shirt of the deceased on him, he confessed that he had killed Niranjan Singh near Ghatigaon and the dead body has been thrown in Deopura located in the ravines of Chambal. He also stated that he had taken an amount of Rs. 7,000/- from the pocket of the deceased along with his driving licence and a diary. An FIR was lodged on 19.11.1999 at P.S. Morar.4. During the course of investigation, a skeleton in a highly decomposed state wearing a shirt, banian and underwear was found in a ditch at the instance of the appellant. The appellant also led to the discovery of driving licence and diary of the accused.5. The prosecution examined as many as 16 witnesses. The most crucial witness for the prosecution is Ganesh Prasad (PW-8), the owner of the truck. As observed earlier, the trial Court and the High Court have both convicted the appellant. 6. We have heard learned counsel appearing for both the parties. 7. We find that the case rests mainly on circumstantial evidence and the burden has been properly discharged by the prosecution. There is no doubt about whom the deceased was last seen with. The owner of the truck has himself stated that he had sent Raju along with the deceased on truck from Gwalior to Bhopal. This fact having been admitted, it is obvious that it was for Raju to explain as to what happened to Niranjan Singh. That he has failed to do. 8. The High Court dealt with the following aspects in its judgment: (i) appellant was seen last in the company of the deceased; (ii) suspicious conduct of the appellant by setting forth false story; (iii) after discharging his duties as clearner, appellant did not resume the work place of his master Ganesh Prasad; 9. We are in entire agreement with the High Court that when all the circumstances are considered together they form a complete chain unerringly pointing to the guilt of the accused. 10. As observed earlier, there is no doubt that the appellant was last seen in the company of the deceased and, in fact, he cooked up a false story which makes his conduct suspicious. The false story lies in the telephone call to the owner that the deceased had fallen ill and again on the next day, another phone call to the owner that he is going to Pune with the goods and on the other hand, employing another driver and himself fleeing. The appellant did not thereafter return to resume his duties as a cleaner in the employment of Ganesh Prasad but went to his village Dharampur where he was discovered by Ganesh Prasad and others, as stated above. There was no reason for him to act in the above manner except to hide his foul deeds. 11. The High Court also dealt with the following aspects in its judgment: (iv) recovery of skeleton at the instance of the appellant; (v) recovery of other articles from appellant; and (vi) extra judicial confession of the appellant. 12. A skeleton was recovered in the Chambal ravines in a ditch about 200 feet deep and in a highly decomposed state. Learned counsel for the appellant vehemently argued that the skeleton has not been identified, in fact it was not possible to make out that it was a skeleton of a man or a woman. Much less could it be said, therefore, that it was of the deceased. This argument is of no avail to the appellant in this case since it would not have been possible to discover the skeleton at all unless someone who had knowledge about it led to its discovery. The appellant undoubtedly knew where he had thrown the dead body of Niranjan Singh with whom he had gone on the truck from Gwalior to Bhopal. 13. A Similar inference is liable to be drawn in regard to the other discovery at the instance of the appellant, namely, the driving licence and pocket diary of the deceased and the iron rod. The first two articles could only have been with the deceased; or with someone who had taken it from the deceased. We have thus, no doubt of the appellants guilt. 14. At this stage, learned counsel appearing for the appellant, who ably assisted the Court, submitted that the owner of the truck had a motive to falsely implicate the appellant. According to the learned counsel, the appellant had dis-agreement with the owner who had, in fact, driven him away after beating him and later on called him to implicate him falsely. This statement made by the appellant in its defence under Section 313 sounds hollow and we have no hesitation in rejecting the explanation. 15. We find that there is no reason for the owner of the truck to falsely implicate the appellant.16. In the result, we find that the chain of circumstances unerringly pointing towards the guilt of the appellant.
### Response:
0
### Explanation:
15. We find that there is no reason for the owner of the truck to falsely implicate the appellant.16. In the result, we find that the chain of circumstances unerringly pointing towards the guilt of the appellant.
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Awadh Behari Sharma Vs. State of Madhya Pradesh | likely to be honestly discrepant and the question is not one of weighing the reliability of witnesses. Whatever may be the position as regards the trial Court and the appellate Court, the High Court had before it some additional evidence relating to the relevant mechanical aspects which was permitted to be given and which clinches the issue. In the High Court affidavit of one Mr. A. H. Burnett, the Divisional Superintendent, Central Railways, Jabalpur, was filed. It states to the following effect :"The signals at this station at the time of the accident were worked from a 4 lever ground frame situated opposite the Station Masters Office. There is a Home and Outer signals provided on each side of the station. The Home signal levers are secured in the normal position by means of padlocks, the keys of which remain in the custody of the Station Master on duty. The looking in the signal frame is such that- (a) The outer signal cannot be lowered unless the Home signal is first lowered. (b) Only one Home signal can be lowered at a time. ... ...... Ghatera is a non-interlocked Station. The points are not interlocked with the signals. The Home signal was a signal common to the three reception lines. It was the responsibility of the Station Master on duty to ensure that the points are correctly set for the line on which the train is to be received and that this line is clear of obstruction before lowering the Home signal." Now in view of this evidence it is that when the home and outer signals on the up side were lowered for reception of H. 10 Up train the home and outer signals on the down side must have been at danger. If so, it is important to consider when and how they could have been lowered. In the normal course it is only when the Mukaddam returns to the station after setting the points on the side to the main line and gives back the keys of those points to the Station Master that the signalsman would receive instructions to raise the signals on the upside to danger. It is only after this that he will be in a position to lower the signals on the down side on receiving the requisite keys from the Station Master. On the evidence both of P. W. 25 and of P. W. 6, it is absolutely clear that the Mukaddam had not reached the station Master but was on his way to the station (which was about two furlongs from the points) by the time the collision occurred. It is, therefore, difficult, if not unfair, to assume against the appellant that the signals on the up side would have already been raised to danger so as to enable the signals on the down side to be lowered for the down train. If there had been any scope for signals on both sides to have been simultaneously lowered down then it might have been possible to attribute to the Station Master the responsibility for the negligent lowering of signals on both sides. But this, as has been clarified by the affidavit in the High Court, is mechanically impossible. Assuming however that in some unexplained way the levers on the down side were found to have been lowered at the very time of the collision witnesses have deposed, this does not necessarily mean than the negligence is to be attributed to the appellant. It is not disputed that the actual physical act of lowering is to be done not by the Station Master. It is not his job but that of the signalsman, accused Budhu Singh, who had been acquitted. There is absolutely no. indication in the evidence that he had by then received instructions from the Station Master to lower the down side signals or had received the necessary keys from him to enable him to operate the down side signals. If the evidence on the prosecution side is true and if the lowering was due to any negligence, there is no. reason why that negligence should be attributed to the appellant and not to somebody else such as the pointsman, Budhu Singh. The wrong approach of the Courts below on this aspect appears clearly from the following passage in the judgment of the trial Court which acquitted the accused Budhu Singh and which appears to have been tacitly accepted on appeal and on revision."It is alleged that Budhu Singh pointsman lowered the signal and allowed the train F. 45 Dn. To come and collide with H. 10 Up. Assuming it to be so, it cannot be said that Budhu Singh had he same knowledge as that of A. B. Sharma. Budhu Singh is supposed to act according to the orders of S. M. or A. S. M. on duty. If he lowered the signals for F. 45 Dn. he did so at the bidding of A. B. Sharma, accused." There is absolutely no. evidence to justify the underlined statement. The appellant cannot be convicted on the basis of an assumption relating to such a crucial matter. It is also our opinion that the question at issue should not have been decided in this case on a mere balance of oral evidence and that balance allowed to be weighed down against the accused on the basis of the inadmissible statement of P. W. 6 to P. W. 25 without P. W. 6 having been asked about it. In view of the clear excessive speed with which the driver of the F. 45 Dn. brought it into the station it is more likely than not that the accident was due to the driver having failed to notice the signals. In our opinion this is a case in which it must be held that the prosecution has failed to adduce evidence on the most crucial point and it must, therefore, be held that the charge has not been brought home to the accused. | 1[ds]9. It appears to us, however, that the correct approach in a matter of this kind should have been to determine the crucial issue not on a mere balance of oral evidence but on broader considerations and clear probabilities. In a matter of this kind, oral evidence is likely to be honestly discrepant and the question is not one of weighing the reliability of witnesses. Whatever may be the position as regards the trial Court and the appellate Court, the High Court had before it some additional evidence relating to the relevant mechanical aspects which was permitted to be given and which clinches the issue. In the High Court affidavit of one Mr. A. H. Burnett, the Divisional Superintendent, Central Railways, Jabalpur, was filed. It states to the following effect :"The signals at this station at the time of the accident were worked from a 4 lever ground frame situated opposite the Station Masters Office. There is a Home and Outer signals provided on each side of the station. The Home signal levers are secured in the normal position by means of padlocks, the keys of which remain in the custody of the Station Master on duty. The looking in the signal frame is such that-(a) The outer signal cannot be lowered unless the Home signal is first lowered(b) Only one Home signal can be lowered at a time. ... ...... Ghatera is a non-interlocked Station. The points are not interlocked with the signals. The Home signal was a signal common to the three reception lines. It was the responsibility of the Station Master on duty to ensure that the points are correctly set for the line on which the train is to be received and that this line is clear of obstruction before lowering the Home signal."Now in view of this evidence it is that when the home and outer signals on the up side were lowered for reception of H. 10 Up train the home and outer signals on the down side must have been at danger. If so, it is important to consider when and how they could have been lowered. In the normal course it is only when the Mukaddam returns to the station after setting the points on the side to the main line and gives back the keys of those points to the Station Master that the signalsman would receive instructions to raise the signals on the upside to danger. It is only after this that he will be in a position to lower the signals on the down side on receiving the requisite keys from the Station MasterOn the evidence both of P. W. 25 and of P. W. 6, it is absolutely clear that the Mukaddam had not reached the station Master but was on his way to the station (which was about two furlongs from the points) by the time the collision occurred. It is, therefore, difficult, if not unfair, to assume against the appellant that the signals on the up side would have already been raised to danger so as to enable the signals on the down side to be lowered for the down train. If there had been any scope for signals on both sides to have been simultaneously lowered down then it might have been possible to attribute to the Station Master the responsibility for the negligent lowering of signals on both sides. But this, as has been clarified by the affidavit in the High Court, is mechanically impossibleAssuming however that in some unexplained way the levers on the down side were found to have been lowered at the very time of the collision witnesses have deposed, this does not necessarily mean than the negligence is to be attributed to the appellant. It is not disputed that the actual physical act of lowering is to be done not by the Station Master. It is not his job but that of the signalsman, accused Budhu Singh, who had been acquitted. There is absolutely no. indication in the evidence that he had by then received instructions from the Station Master to lower the down side signals or had received the necessary keys from him to enable him to operate the down side signalsIf the evidence on the prosecution side is true and if the lowering was due to any negligence, there is no. reason why that negligence should be attributed to the appellant and not to somebody else such as the pointsman, Budhu Singh. The wrong approach of the Courts below on this aspect appears clearly from the following passage in the judgment of the trial Court which acquitted the accused Budhu Singh and which appears to have been tacitly accepted on appeal and on revision"It is alleged that Budhu Singh pointsman lowered the signal and allowed the train F. 45 Dn. To come and collide with H. 10 Up. Assuming it to be so, it cannot be said that Budhu Singh had he same knowledge as that of A. B. Sharma. Budhu Singh is supposed to act according to the orders of S. M. or A. S. M. on duty. If he lowered the signals for F. 45 Dn. he did so at the bidding of A. B. Sharma, accused."There is absolutely no. evidence to justify the underlined statement. The appellant cannot be convicted on the basis of an assumption relating to such a crucial matter. It is also our opinion that the question at issue should not have been decided in this case on a mere balance of oral evidence and that balance allowed to be weighed down against the accused on the basis of the inadmissible statement of P. W. 6 to P. W. 25 without P. W. 6 having been asked about itIn view of the clear excessive speed with which the driver of the F. 45 Dn. brought it into the station it is more likely than not that the accident was due to the driver having failed to notice the signals. In our opinion this is a case in which it must be held that the prosecution has failed to adduce evidence on the most crucial point and it must, therefore, be held that the charge has not been brought home to the accused. | 1 | 4,130 | 1,128 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
likely to be honestly discrepant and the question is not one of weighing the reliability of witnesses. Whatever may be the position as regards the trial Court and the appellate Court, the High Court had before it some additional evidence relating to the relevant mechanical aspects which was permitted to be given and which clinches the issue. In the High Court affidavit of one Mr. A. H. Burnett, the Divisional Superintendent, Central Railways, Jabalpur, was filed. It states to the following effect :"The signals at this station at the time of the accident were worked from a 4 lever ground frame situated opposite the Station Masters Office. There is a Home and Outer signals provided on each side of the station. The Home signal levers are secured in the normal position by means of padlocks, the keys of which remain in the custody of the Station Master on duty. The looking in the signal frame is such that- (a) The outer signal cannot be lowered unless the Home signal is first lowered. (b) Only one Home signal can be lowered at a time. ... ...... Ghatera is a non-interlocked Station. The points are not interlocked with the signals. The Home signal was a signal common to the three reception lines. It was the responsibility of the Station Master on duty to ensure that the points are correctly set for the line on which the train is to be received and that this line is clear of obstruction before lowering the Home signal." Now in view of this evidence it is that when the home and outer signals on the up side were lowered for reception of H. 10 Up train the home and outer signals on the down side must have been at danger. If so, it is important to consider when and how they could have been lowered. In the normal course it is only when the Mukaddam returns to the station after setting the points on the side to the main line and gives back the keys of those points to the Station Master that the signalsman would receive instructions to raise the signals on the upside to danger. It is only after this that he will be in a position to lower the signals on the down side on receiving the requisite keys from the Station Master. On the evidence both of P. W. 25 and of P. W. 6, it is absolutely clear that the Mukaddam had not reached the station Master but was on his way to the station (which was about two furlongs from the points) by the time the collision occurred. It is, therefore, difficult, if not unfair, to assume against the appellant that the signals on the up side would have already been raised to danger so as to enable the signals on the down side to be lowered for the down train. If there had been any scope for signals on both sides to have been simultaneously lowered down then it might have been possible to attribute to the Station Master the responsibility for the negligent lowering of signals on both sides. But this, as has been clarified by the affidavit in the High Court, is mechanically impossible. Assuming however that in some unexplained way the levers on the down side were found to have been lowered at the very time of the collision witnesses have deposed, this does not necessarily mean than the negligence is to be attributed to the appellant. It is not disputed that the actual physical act of lowering is to be done not by the Station Master. It is not his job but that of the signalsman, accused Budhu Singh, who had been acquitted. There is absolutely no. indication in the evidence that he had by then received instructions from the Station Master to lower the down side signals or had received the necessary keys from him to enable him to operate the down side signals. If the evidence on the prosecution side is true and if the lowering was due to any negligence, there is no. reason why that negligence should be attributed to the appellant and not to somebody else such as the pointsman, Budhu Singh. The wrong approach of the Courts below on this aspect appears clearly from the following passage in the judgment of the trial Court which acquitted the accused Budhu Singh and which appears to have been tacitly accepted on appeal and on revision."It is alleged that Budhu Singh pointsman lowered the signal and allowed the train F. 45 Dn. To come and collide with H. 10 Up. Assuming it to be so, it cannot be said that Budhu Singh had he same knowledge as that of A. B. Sharma. Budhu Singh is supposed to act according to the orders of S. M. or A. S. M. on duty. If he lowered the signals for F. 45 Dn. he did so at the bidding of A. B. Sharma, accused." There is absolutely no. evidence to justify the underlined statement. The appellant cannot be convicted on the basis of an assumption relating to such a crucial matter. It is also our opinion that the question at issue should not have been decided in this case on a mere balance of oral evidence and that balance allowed to be weighed down against the accused on the basis of the inadmissible statement of P. W. 6 to P. W. 25 without P. W. 6 having been asked about it. In view of the clear excessive speed with which the driver of the F. 45 Dn. brought it into the station it is more likely than not that the accident was due to the driver having failed to notice the signals. In our opinion this is a case in which it must be held that the prosecution has failed to adduce evidence on the most crucial point and it must, therefore, be held that the charge has not been brought home to the accused.
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### Explanation:
a matter of this kind, oral evidence is likely to be honestly discrepant and the question is not one of weighing the reliability of witnesses. Whatever may be the position as regards the trial Court and the appellate Court, the High Court had before it some additional evidence relating to the relevant mechanical aspects which was permitted to be given and which clinches the issue. In the High Court affidavit of one Mr. A. H. Burnett, the Divisional Superintendent, Central Railways, Jabalpur, was filed. It states to the following effect :"The signals at this station at the time of the accident were worked from a 4 lever ground frame situated opposite the Station Masters Office. There is a Home and Outer signals provided on each side of the station. The Home signal levers are secured in the normal position by means of padlocks, the keys of which remain in the custody of the Station Master on duty. The looking in the signal frame is such that-(a) The outer signal cannot be lowered unless the Home signal is first lowered(b) Only one Home signal can be lowered at a time. ... ...... Ghatera is a non-interlocked Station. The points are not interlocked with the signals. The Home signal was a signal common to the three reception lines. It was the responsibility of the Station Master on duty to ensure that the points are correctly set for the line on which the train is to be received and that this line is clear of obstruction before lowering the Home signal."Now in view of this evidence it is that when the home and outer signals on the up side were lowered for reception of H. 10 Up train the home and outer signals on the down side must have been at danger. If so, it is important to consider when and how they could have been lowered. In the normal course it is only when the Mukaddam returns to the station after setting the points on the side to the main line and gives back the keys of those points to the Station Master that the signalsman would receive instructions to raise the signals on the upside to danger. It is only after this that he will be in a position to lower the signals on the down side on receiving the requisite keys from the Station MasterOn the evidence both of P. W. 25 and of P. W. 6, it is absolutely clear that the Mukaddam had not reached the station Master but was on his way to the station (which was about two furlongs from the points) by the time the collision occurred. It is, therefore, difficult, if not unfair, to assume against the appellant that the signals on the up side would have already been raised to danger so as to enable the signals on the down side to be lowered for the down train. If there had been any scope for signals on both sides to have been simultaneously lowered down then it might have been possible to attribute to the Station Master the responsibility for the negligent lowering of signals on both sides. But this, as has been clarified by the affidavit in the High Court, is mechanically impossibleAssuming however that in some unexplained way the levers on the down side were found to have been lowered at the very time of the collision witnesses have deposed, this does not necessarily mean than the negligence is to be attributed to the appellant. It is not disputed that the actual physical act of lowering is to be done not by the Station Master. It is not his job but that of the signalsman, accused Budhu Singh, who had been acquitted. There is absolutely no. indication in the evidence that he had by then received instructions from the Station Master to lower the down side signals or had received the necessary keys from him to enable him to operate the down side signalsIf the evidence on the prosecution side is true and if the lowering was due to any negligence, there is no. reason why that negligence should be attributed to the appellant and not to somebody else such as the pointsman, Budhu Singh. The wrong approach of the Courts below on this aspect appears clearly from the following passage in the judgment of the trial Court which acquitted the accused Budhu Singh and which appears to have been tacitly accepted on appeal and on revision"It is alleged that Budhu Singh pointsman lowered the signal and allowed the train F. 45 Dn. To come and collide with H. 10 Up. Assuming it to be so, it cannot be said that Budhu Singh had he same knowledge as that of A. B. Sharma. Budhu Singh is supposed to act according to the orders of S. M. or A. S. M. on duty. If he lowered the signals for F. 45 Dn. he did so at the bidding of A. B. Sharma, accused."There is absolutely no. evidence to justify the underlined statement. The appellant cannot be convicted on the basis of an assumption relating to such a crucial matter. It is also our opinion that the question at issue should not have been decided in this case on a mere balance of oral evidence and that balance allowed to be weighed down against the accused on the basis of the inadmissible statement of P. W. 6 to P. W. 25 without P. W. 6 having been asked about itIn view of the clear excessive speed with which the driver of the F. 45 Dn. brought it into the station it is more likely than not that the accident was due to the driver having failed to notice the signals. In our opinion this is a case in which it must be held that the prosecution has failed to adduce evidence on the most crucial point and it must, therefore, be held that the charge has not been brought home to the accused.
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The Indian Oxygen & Acetylene Co.,Private Ltd., Bombay Vs. Its Workmen & Another | calculations have been made which are open to objection. Before dealing with these objections it may be stated generally that when Mr. Saigal and Mr. Basak gave evidence they were not asked any definite or precise questions on which the objections urged before us are based.It is desirable that in enquiries of this kind, when experts give evidence on behalf of the employer, workmen should cross-examine them on all points which they propose to urge against the employers claim in regard to rehabilitation. However, we would like to deal with the merits of the said contentions in the light of such evidence as is available on the record. 15. The first contention is that the assets which have spent their lives and are thus exhausted should not be continued in making calculations under the weightage method. This objection applies to such assets as lease-hold buildings, cars and trucks.We are inclined to think that the method adopted by the appellant in making its calculations gives a more correct picture of the assets actually in use and the rehabilitation cost claimed in respect of them.If in the relevant year the asset is in existence and use, a claim for its rehabilitation would not become inadmissible.The same argument is put in another form and it is urged that where an asset which has come to an end is taken into account it would be wrong to take into account in the same year a new asset which has come into existence. The suggestion is that by this method a double claim for rehabilitation creeps into the calculation. We are not satisfied that even this argument is well-founded. Let us examine this argument by reference to one item. The lease-hold buildings of the appellant include two buildings known as D. A, and Oxygen respectively at Bombay (Ex. C. 19). As on 30-9-1953, the estimated life of these buildings from 1-10-1953 is shown to be one year and the annual provision claimed for rehabilitating them is shown as Rs. 97,468 and Rs. 30,590 respectively. These claims have not been made in the subsequent year. In the same year two new buildings called D, A. and Oxygen respectively which were erected in 1952 have been included and the annual provision for rehabilitation in respect of them is made at Rs. 6,474 and 6,972 respectively. Now, if the respondents argument is accepted and the calculations made in regard to the new buildings were excluded from the statements, the appellant would apparently be entitled to claim a somewhat higher amount. It may be mentioned that in working out the figures for rehabilitation in respect of new buildings Ex. C. 11 has included this item of Rs. 13,000 and odd the larger item of Rs. 4,56,316 mentioned against uncovered requirement for rehabilitation and replacement in the year, whereas in deducting Rs. 2,31,700 by way of normal depreciation for the said year an amount of Rs. 22,000 and odd has been taken to be the normal depreciation in respect of the new buildings; that is to say, as against a claim of Rs. 13,000 and odd made for rehabilitation in respect of the said two buildings in Ex. C. 19 a deduction by way of normal depreciation has been allowed to the extent of Rs. 22,000 and odd. Therefore it does not appear on the evidence as it stands, that the method adopted by the appellant in making its calculations has introduced any serious infirmity or has given a distorted or inflated claim about the provision for rehabilitation. 16. In this connection it is relevant to refer to the fact that the calculations made by the appellant are based upon an item-wise study of its plant and machinery, and such a method, it is conceded, is bound to lead to more satisfactory results. Air. Basak produced Exs. C. 1 to C. 16 which contained all the relevant calculations and he stated in cross-examination that as a matter of business practice a businessman has to think of replacing his machines even thought they may have been bought in the relevant year. Of course, in considering the claim for rehabilitation in respect of such an item the multiplier would normally be 1 and the divisor would represent the total future life of the said machines. In regard to the exhausted assets the witness stated that if they are not included in the schedule the final result on Exs. C. 11 and C. 12 would be incorrect because in these statements the total depreciation provided up to the opening of the year has been deducted and this sum includes proportionate depreciation also on the assets referred to. He has also added that the total value of all fixed assets shown in Exs. C. 11 and C. 12 "have got to agree with the values shown in the balance-sheets"; and he claimed that his method of calculating weighted average of the remaining life of assets is the most correct that can be employed." Similarly Mr. Saigal was cross-examined about the Bangalore plant which had been installed in 1946. He stated that theoretically it should have a life till 1968 but in effect the plant had become so unreliable that they had to instal new one and to, keep the old one as a standby. According to this witness actually the life of the machinery enumerated in Ex. C. 20 works out to less than 22 years but for simplicity in accounting he had taken the figure to be 22. As we have already mentioned the tribunal took the view that the evidence given by the appellants witnesses in the present proceedings was satisfactory and we do not think that any material has been brought out in cross-examination which would justify the respondents contention that the tribunal had not properly appreciated the said evidence. In the result we hold that the respondents have failed to show that any of the conclusions reached by the tribunal in making its calculations under its alternative finding are wrong. | 1[ds]This question has been considered by us at length in the case of Associated Cement Companies Ltd., Bombay v. Their Workmen, Civil Appeals Nos. 459 and 460 of 1957, D/- 5-5-1959: (AIR 1959 SC 967 ), andwe have held that in dealing with claims for bonus industrial tribunals must give effect to the formula. We have also indicated how the calculations under the formula should be made in such disputes. In view of the said decision we must hold that the tribunal was in error in not granting to the appellant its claim for rehabilitationThis is shown by the calculations made by it under Ex. TB. Thus it would be clear that on the alternative finding made by the tribunal the appellant would be entitled to succeed and the award under appeal would have to be set asideIt appears that the tribunal was inclined to take the view that once an allowance is made to the employer by way of rehabilitation of plant and machinery, it is not open to the tribunal to enquire what he had done with the said amount.In the A. C. C.s case, AIR 1959 SC 967 ), we have held that if an amount for rehabilitation is allowed to an employer and it appears that during the relevant year the said amount was available to him then in subsequent years the said amount will have to be taken into account unless it is shown that in the meanwhile it had been used for the purpose of rehabilitation.So we would accept the respondents contention that the appellant is bound to take into consideration the amount, previously, allowed to it by way of rehabilitationIt is now well settled that the employer is not entitled to claim a prior charge under the formula for any item of expansion but the awards previously passed between the appellant and its workmen seem to have allowed for a claim for expansion as a prior charge, and that fact cannot be ignored in dealing with the respondents present contention11. But apart from this aspect of the matter, it is clear that the appellant has brought into account one-half of its general reserve as on 30-9-1953 and 30-9-1954 respectively, and these amounts are Rs. 5,51,363 and Rs. 3,95,376: In view of this fact it is difficult to accept the argument that the amounts allowed to the appellant by way of rehabilitation in the previous-years had not been brought into account. We would like to add that this point had not been taken before the tribunal, and may be could not be taken before it, because the tribunal has held that the employer could not be called upon to bring into account the said amountNow, if the respondents argument is accepted and the calculations made in regard to the new buildings were excluded from the statements, the appellant would apparently be entitled to claim a somewhat higher amount. It may be mentioned that in working out the figures for rehabilitation in respect of new buildings Ex. C. 11 has included this item of Rs. 13,000 and odd the larger item of Rs. 4,56,316 mentioned against uncovered requirement for rehabilitation and replacement in the year, whereas in deducting Rs. 2,31,700 by way of normal depreciation for the said year an amount of Rs. 22,000 and odd has been taken to be the normal depreciation in respect of the new buildings; that is to say, as against a claim of Rs. 13,000 and odd made for rehabilitation in respect of the said two buildings in Ex. C. 19 a deduction by way of normal depreciation has been allowed to the extent of Rs. 22,000 and odd. Therefore it does not appear on the evidence as it stands, that the method adopted by the appellant in making its calculations has introduced any serious infirmity or has given a distorted or inflated claim about the provision for rehabilitationtribunal took the view that the evidence given by the appellants witnesses in the present proceedings was satisfactory and we do not think that any material has been brought out in cross-examination which would justify the respondents contention that the tribunal had not properly appreciated the said evidence. In the result we hold that the respondents have failed to show that any of the conclusions reached by the tribunal in making its calculations under its alternative finding are wrong. | 1 | 2,984 | 777 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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calculations have been made which are open to objection. Before dealing with these objections it may be stated generally that when Mr. Saigal and Mr. Basak gave evidence they were not asked any definite or precise questions on which the objections urged before us are based.It is desirable that in enquiries of this kind, when experts give evidence on behalf of the employer, workmen should cross-examine them on all points which they propose to urge against the employers claim in regard to rehabilitation. However, we would like to deal with the merits of the said contentions in the light of such evidence as is available on the record. 15. The first contention is that the assets which have spent their lives and are thus exhausted should not be continued in making calculations under the weightage method. This objection applies to such assets as lease-hold buildings, cars and trucks.We are inclined to think that the method adopted by the appellant in making its calculations gives a more correct picture of the assets actually in use and the rehabilitation cost claimed in respect of them.If in the relevant year the asset is in existence and use, a claim for its rehabilitation would not become inadmissible.The same argument is put in another form and it is urged that where an asset which has come to an end is taken into account it would be wrong to take into account in the same year a new asset which has come into existence. The suggestion is that by this method a double claim for rehabilitation creeps into the calculation. We are not satisfied that even this argument is well-founded. Let us examine this argument by reference to one item. The lease-hold buildings of the appellant include two buildings known as D. A, and Oxygen respectively at Bombay (Ex. C. 19). As on 30-9-1953, the estimated life of these buildings from 1-10-1953 is shown to be one year and the annual provision claimed for rehabilitating them is shown as Rs. 97,468 and Rs. 30,590 respectively. These claims have not been made in the subsequent year. In the same year two new buildings called D, A. and Oxygen respectively which were erected in 1952 have been included and the annual provision for rehabilitation in respect of them is made at Rs. 6,474 and 6,972 respectively. Now, if the respondents argument is accepted and the calculations made in regard to the new buildings were excluded from the statements, the appellant would apparently be entitled to claim a somewhat higher amount. It may be mentioned that in working out the figures for rehabilitation in respect of new buildings Ex. C. 11 has included this item of Rs. 13,000 and odd the larger item of Rs. 4,56,316 mentioned against uncovered requirement for rehabilitation and replacement in the year, whereas in deducting Rs. 2,31,700 by way of normal depreciation for the said year an amount of Rs. 22,000 and odd has been taken to be the normal depreciation in respect of the new buildings; that is to say, as against a claim of Rs. 13,000 and odd made for rehabilitation in respect of the said two buildings in Ex. C. 19 a deduction by way of normal depreciation has been allowed to the extent of Rs. 22,000 and odd. Therefore it does not appear on the evidence as it stands, that the method adopted by the appellant in making its calculations has introduced any serious infirmity or has given a distorted or inflated claim about the provision for rehabilitation. 16. In this connection it is relevant to refer to the fact that the calculations made by the appellant are based upon an item-wise study of its plant and machinery, and such a method, it is conceded, is bound to lead to more satisfactory results. Air. Basak produced Exs. C. 1 to C. 16 which contained all the relevant calculations and he stated in cross-examination that as a matter of business practice a businessman has to think of replacing his machines even thought they may have been bought in the relevant year. Of course, in considering the claim for rehabilitation in respect of such an item the multiplier would normally be 1 and the divisor would represent the total future life of the said machines. In regard to the exhausted assets the witness stated that if they are not included in the schedule the final result on Exs. C. 11 and C. 12 would be incorrect because in these statements the total depreciation provided up to the opening of the year has been deducted and this sum includes proportionate depreciation also on the assets referred to. He has also added that the total value of all fixed assets shown in Exs. C. 11 and C. 12 "have got to agree with the values shown in the balance-sheets"; and he claimed that his method of calculating weighted average of the remaining life of assets is the most correct that can be employed." Similarly Mr. Saigal was cross-examined about the Bangalore plant which had been installed in 1946. He stated that theoretically it should have a life till 1968 but in effect the plant had become so unreliable that they had to instal new one and to, keep the old one as a standby. According to this witness actually the life of the machinery enumerated in Ex. C. 20 works out to less than 22 years but for simplicity in accounting he had taken the figure to be 22. As we have already mentioned the tribunal took the view that the evidence given by the appellants witnesses in the present proceedings was satisfactory and we do not think that any material has been brought out in cross-examination which would justify the respondents contention that the tribunal had not properly appreciated the said evidence. In the result we hold that the respondents have failed to show that any of the conclusions reached by the tribunal in making its calculations under its alternative finding are wrong.
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### Explanation:
This question has been considered by us at length in the case of Associated Cement Companies Ltd., Bombay v. Their Workmen, Civil Appeals Nos. 459 and 460 of 1957, D/- 5-5-1959: (AIR 1959 SC 967 ), andwe have held that in dealing with claims for bonus industrial tribunals must give effect to the formula. We have also indicated how the calculations under the formula should be made in such disputes. In view of the said decision we must hold that the tribunal was in error in not granting to the appellant its claim for rehabilitationThis is shown by the calculations made by it under Ex. TB. Thus it would be clear that on the alternative finding made by the tribunal the appellant would be entitled to succeed and the award under appeal would have to be set asideIt appears that the tribunal was inclined to take the view that once an allowance is made to the employer by way of rehabilitation of plant and machinery, it is not open to the tribunal to enquire what he had done with the said amount.In the A. C. C.s case, AIR 1959 SC 967 ), we have held that if an amount for rehabilitation is allowed to an employer and it appears that during the relevant year the said amount was available to him then in subsequent years the said amount will have to be taken into account unless it is shown that in the meanwhile it had been used for the purpose of rehabilitation.So we would accept the respondents contention that the appellant is bound to take into consideration the amount, previously, allowed to it by way of rehabilitationIt is now well settled that the employer is not entitled to claim a prior charge under the formula for any item of expansion but the awards previously passed between the appellant and its workmen seem to have allowed for a claim for expansion as a prior charge, and that fact cannot be ignored in dealing with the respondents present contention11. But apart from this aspect of the matter, it is clear that the appellant has brought into account one-half of its general reserve as on 30-9-1953 and 30-9-1954 respectively, and these amounts are Rs. 5,51,363 and Rs. 3,95,376: In view of this fact it is difficult to accept the argument that the amounts allowed to the appellant by way of rehabilitation in the previous-years had not been brought into account. We would like to add that this point had not been taken before the tribunal, and may be could not be taken before it, because the tribunal has held that the employer could not be called upon to bring into account the said amountNow, if the respondents argument is accepted and the calculations made in regard to the new buildings were excluded from the statements, the appellant would apparently be entitled to claim a somewhat higher amount. It may be mentioned that in working out the figures for rehabilitation in respect of new buildings Ex. C. 11 has included this item of Rs. 13,000 and odd the larger item of Rs. 4,56,316 mentioned against uncovered requirement for rehabilitation and replacement in the year, whereas in deducting Rs. 2,31,700 by way of normal depreciation for the said year an amount of Rs. 22,000 and odd has been taken to be the normal depreciation in respect of the new buildings; that is to say, as against a claim of Rs. 13,000 and odd made for rehabilitation in respect of the said two buildings in Ex. C. 19 a deduction by way of normal depreciation has been allowed to the extent of Rs. 22,000 and odd. Therefore it does not appear on the evidence as it stands, that the method adopted by the appellant in making its calculations has introduced any serious infirmity or has given a distorted or inflated claim about the provision for rehabilitationtribunal took the view that the evidence given by the appellants witnesses in the present proceedings was satisfactory and we do not think that any material has been brought out in cross-examination which would justify the respondents contention that the tribunal had not properly appreciated the said evidence. In the result we hold that the respondents have failed to show that any of the conclusions reached by the tribunal in making its calculations under its alternative finding are wrong.
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The Commissioner Of Income-Tax,Bombay Vs. Chandulal Keshavlal & Co., Petlad | Company even though it may affect very closely the trade or business of another was not the same thing as that others trade or business. In computing the profits and gains of the assessee, it is his trade that is to be regarded. At page 110 (of 1941-9 ITR (Sup.) ), Viscount Maugham observed:"My Lords, the question thus put answers itself. There were, beyond dispute, the two relationships between the Company and the Coming Fashions Ltd., already referred to. The allowance of the ? 2927 5s. 8d. to Coming Fashions Ltd., might have been laid out or expended for the purpose of the trade of Coming Fashions Ltd., or to some extent for both purposes and it is plain that these facts alone were sufficient to show that there was evidence to justify the conclusion of the Commissioner that the written off was not written off wholly and exclusively for the purpose of the trade or business of the Appellants."The connection between the assessee company and the subsidiary company, apart from the holding of shares, was that the assessee company did printing for the subsidiary company. The effect of the transaction was debiting of another entitys loss to the assessee company but there was no direct connection between the profits of the assessee company with that of the amount claimed. The real point in that case was that the amount was not wholly and exclusively written off for the purpose of the assessee company. Viscount Maugham said:"Is there any real ground for contending on the evidence that one reason for writing of the sum was not to enable Coming Fashions Ltd., to continue to carry on its business as compiler and vendor of Every womans?"The cases we have discussed above show that it is a question of fact in each case whether the amount which is claimed as a deductible allowance under S. 10 (2) (xv) of the Income-tax Act was laid out wholly and exclusively for the purpose of such business and if the fact-finding tribunal comes to the conclusion on evidence which would justify that conclusion it being for them to find the evidence and to give the finding then it will become an admissible deduction. The decision of such questions is for the Income-tax Appellate Tribunal and the decision must be sustained if there is evidence upon which the Tribunal could have arrived at such a conclusion.8. Another fact that emerges from these cases is that if the expense is incurred for fostering the business of another only or was made by way of distribution of profits or was wholly gratuitous or for some improper or oblique purpose outside the course of business then the expense is not deductible. In deciding whether a payment of money is a deductible expenditure one has to take into consideration questions of commercial expediency and the principles of ordinary commercial trading. If the payment or expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may inure to the benefit of a third party, (1915) 6 Tax Cas 399 (supra). Another test is whether the transaction is properly entered into as a part of the assessees legitimate commercial undertaking in order to facilitate the carrying on of its business; and it is immaterial that a third party also benefits thereby (1951 SCR 594 : (AIR 1951 SC 278 ) (supra) ). But in every case it is a question of fact whether the expenditure was expended wholly and exclusively for the purpose of trade or business of the assessee. In the present case the finding is that it was laid out for the purpose of the assessees business and there is evidence to support this finding. Mr. Palkhivala referred in this connection to Atherton v. British Insulated and Helsby Cables Ltd., (1926) 10 Tax Cas 155, where, at page 191, Viscount Cave L. C., observed:"It was made clear in the above cited cases of (1915) 6 Tax Cas 399, and Smith v. Incorporated Council of Law Reporting, (1914) 6 Tax Cas 477, that a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the grounds of commercial expediency and in order indirectly to facilitate the carrying on of the business may yet be expended wholly and exclusively for the purpose of the trade; and it appears to me that the findings of the Commissioners in the present case bring the payment in question within that description. They found (in words which I have already quoted) that the payment was made for the sound commercial purpose of enabling the Company to retain the services of existing and future members of their staff and of increasing the efficiency of the staff; and after referring to the contention of the Crown that the sum of ? 31,784 was not money wholly and exclusively laid out for the purposes of the trade under the Rule above referred to, they found that the deduction was admissible - thus in effect, although not in terms, negativing the Crowns contention. I think that there was ample material to support the findings of the Commissioners, and accordingly that this prohibition does not apply."Thus in cases like the present one in order to justify deduction the sum must be given up for reasons of commercial expediency; it may be voluntary, but so long as it is incurred for the assessees benefit the deduction would be claimable.9. The Income-tax Appellate Tribunal has found in favour of the Managing Agent that the amount was expended for reasons of commercial expediency, it was not given as a bounty but to strengthen the Managed Company and if the financial position of the Managed Company became strong the Managing Agent would benefit thereby.That finding is one of fact. On that finding the Income-tax Appellate Tribunal rightly came to the conclusion that it was a deductible expense under S. 10 (2) (xv). | 0[ds]The cases we have discussed above show that it is a question of fact in each case whether the amount which is claimed as a deductible allowance under S. 10 (2) (xv) of the Income-tax Act was laid out wholly and exclusively for the purpose of such business and if the fact-finding tribunal comes to the conclusion on evidence which would justify that conclusion it being for them to find the evidence and to give the finding then it will become an admissible deduction. The decision of such questions is for the Income-tax Appellate Tribunal and the decision must be sustained if there is evidence upon which the Tribunal could have arrived at such a conclusion.8. Another fact that emerges from these cases is that if the expense is incurred for fostering the business of another only or was made by way of distribution of profits or was wholly gratuitous or for some improper or oblique purpose outside the course of business then the expense is not deductible. In deciding whether a payment of money is a deductible expenditure one has to take into consideration questions of commercial expediency and the principles of ordinary commercial trading. If the payment or expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may inure to the benefit of a third party, (1915) 6 Tax Cas 399 (supra). Another test is whether the transaction is properly entered into as a part of the assessees legitimate commercial undertaking in order to facilitate the carrying on of its business; and it is immaterial that a third party also benefits thereby (1951 SCR 594 : (AIR 1951 SC 278 ) (supra) ). But in every case it is a question of fact whether the expenditure was expended wholly and exclusively for the purpose of trade or business of the assessee. In the present case the finding is that it was laid out for the purpose of the assessees business and there is evidence to support thisin cases like the present one in order to justify deduction the sum must be given up for reasons of commercial expediency; it may be voluntary, but so long as it is incurred for the assessees benefit the deduction would be claimable.9. The Income-tax Appellate Tribunal has found in favour of the Managing Agent that the amount was expended for reasons of commercial expediency, it was not given as a bounty but to strengthen the Managed Company and if the financial position of the Managed Company became strong the Managing Agent would benefit thereby.That finding is one of fact. On that finding the Income-tax Appellate Tribunal rightly came to the conclusion that it was a deductible expense under S. 10 (2) (xv). | 0 | 4,433 | 495 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
Company even though it may affect very closely the trade or business of another was not the same thing as that others trade or business. In computing the profits and gains of the assessee, it is his trade that is to be regarded. At page 110 (of 1941-9 ITR (Sup.) ), Viscount Maugham observed:"My Lords, the question thus put answers itself. There were, beyond dispute, the two relationships between the Company and the Coming Fashions Ltd., already referred to. The allowance of the ? 2927 5s. 8d. to Coming Fashions Ltd., might have been laid out or expended for the purpose of the trade of Coming Fashions Ltd., or to some extent for both purposes and it is plain that these facts alone were sufficient to show that there was evidence to justify the conclusion of the Commissioner that the written off was not written off wholly and exclusively for the purpose of the trade or business of the Appellants."The connection between the assessee company and the subsidiary company, apart from the holding of shares, was that the assessee company did printing for the subsidiary company. The effect of the transaction was debiting of another entitys loss to the assessee company but there was no direct connection between the profits of the assessee company with that of the amount claimed. The real point in that case was that the amount was not wholly and exclusively written off for the purpose of the assessee company. Viscount Maugham said:"Is there any real ground for contending on the evidence that one reason for writing of the sum was not to enable Coming Fashions Ltd., to continue to carry on its business as compiler and vendor of Every womans?"The cases we have discussed above show that it is a question of fact in each case whether the amount which is claimed as a deductible allowance under S. 10 (2) (xv) of the Income-tax Act was laid out wholly and exclusively for the purpose of such business and if the fact-finding tribunal comes to the conclusion on evidence which would justify that conclusion it being for them to find the evidence and to give the finding then it will become an admissible deduction. The decision of such questions is for the Income-tax Appellate Tribunal and the decision must be sustained if there is evidence upon which the Tribunal could have arrived at such a conclusion.8. Another fact that emerges from these cases is that if the expense is incurred for fostering the business of another only or was made by way of distribution of profits or was wholly gratuitous or for some improper or oblique purpose outside the course of business then the expense is not deductible. In deciding whether a payment of money is a deductible expenditure one has to take into consideration questions of commercial expediency and the principles of ordinary commercial trading. If the payment or expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may inure to the benefit of a third party, (1915) 6 Tax Cas 399 (supra). Another test is whether the transaction is properly entered into as a part of the assessees legitimate commercial undertaking in order to facilitate the carrying on of its business; and it is immaterial that a third party also benefits thereby (1951 SCR 594 : (AIR 1951 SC 278 ) (supra) ). But in every case it is a question of fact whether the expenditure was expended wholly and exclusively for the purpose of trade or business of the assessee. In the present case the finding is that it was laid out for the purpose of the assessees business and there is evidence to support this finding. Mr. Palkhivala referred in this connection to Atherton v. British Insulated and Helsby Cables Ltd., (1926) 10 Tax Cas 155, where, at page 191, Viscount Cave L. C., observed:"It was made clear in the above cited cases of (1915) 6 Tax Cas 399, and Smith v. Incorporated Council of Law Reporting, (1914) 6 Tax Cas 477, that a sum of money expended, not of necessity and with a view to a direct and immediate benefit to the trade, but voluntarily and on the grounds of commercial expediency and in order indirectly to facilitate the carrying on of the business may yet be expended wholly and exclusively for the purpose of the trade; and it appears to me that the findings of the Commissioners in the present case bring the payment in question within that description. They found (in words which I have already quoted) that the payment was made for the sound commercial purpose of enabling the Company to retain the services of existing and future members of their staff and of increasing the efficiency of the staff; and after referring to the contention of the Crown that the sum of ? 31,784 was not money wholly and exclusively laid out for the purposes of the trade under the Rule above referred to, they found that the deduction was admissible - thus in effect, although not in terms, negativing the Crowns contention. I think that there was ample material to support the findings of the Commissioners, and accordingly that this prohibition does not apply."Thus in cases like the present one in order to justify deduction the sum must be given up for reasons of commercial expediency; it may be voluntary, but so long as it is incurred for the assessees benefit the deduction would be claimable.9. The Income-tax Appellate Tribunal has found in favour of the Managing Agent that the amount was expended for reasons of commercial expediency, it was not given as a bounty but to strengthen the Managed Company and if the financial position of the Managed Company became strong the Managing Agent would benefit thereby.That finding is one of fact. On that finding the Income-tax Appellate Tribunal rightly came to the conclusion that it was a deductible expense under S. 10 (2) (xv).
### Response:
0
### Explanation:
The cases we have discussed above show that it is a question of fact in each case whether the amount which is claimed as a deductible allowance under S. 10 (2) (xv) of the Income-tax Act was laid out wholly and exclusively for the purpose of such business and if the fact-finding tribunal comes to the conclusion on evidence which would justify that conclusion it being for them to find the evidence and to give the finding then it will become an admissible deduction. The decision of such questions is for the Income-tax Appellate Tribunal and the decision must be sustained if there is evidence upon which the Tribunal could have arrived at such a conclusion.8. Another fact that emerges from these cases is that if the expense is incurred for fostering the business of another only or was made by way of distribution of profits or was wholly gratuitous or for some improper or oblique purpose outside the course of business then the expense is not deductible. In deciding whether a payment of money is a deductible expenditure one has to take into consideration questions of commercial expediency and the principles of ordinary commercial trading. If the payment or expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may inure to the benefit of a third party, (1915) 6 Tax Cas 399 (supra). Another test is whether the transaction is properly entered into as a part of the assessees legitimate commercial undertaking in order to facilitate the carrying on of its business; and it is immaterial that a third party also benefits thereby (1951 SCR 594 : (AIR 1951 SC 278 ) (supra) ). But in every case it is a question of fact whether the expenditure was expended wholly and exclusively for the purpose of trade or business of the assessee. In the present case the finding is that it was laid out for the purpose of the assessees business and there is evidence to support thisin cases like the present one in order to justify deduction the sum must be given up for reasons of commercial expediency; it may be voluntary, but so long as it is incurred for the assessees benefit the deduction would be claimable.9. The Income-tax Appellate Tribunal has found in favour of the Managing Agent that the amount was expended for reasons of commercial expediency, it was not given as a bounty but to strengthen the Managed Company and if the financial position of the Managed Company became strong the Managing Agent would benefit thereby.That finding is one of fact. On that finding the Income-tax Appellate Tribunal rightly came to the conclusion that it was a deductible expense under S. 10 (2) (xv).
|
Bajirao T.Kote (Dead ) By Lrs. & Anr Vs. State Of Maharashtra & Ors | at Shirdi and other temples and Dharamshala prayer Hall. Thousands of pilgrims daily visit Saibaba Temple at Shiridi to pay their homage and seek blessings of the mystic secular saint Sri Saibaba. Each religion claims that he belongs to their faith but the great saint never proclaimed himself to be of a particular faith. Therefore, all sections of the people in India have great unflinching faith, devotion and absolute belief in him and every day thousands of pilgrims throng Shirdi to pay their homage and seek his blessings. Though physically he was not present, the devotees believe that he is still surviving.9. The land of India is known for such great saints and yogies hailing from different faiths. One good example is of two brothers, by name, EIder and Younger, bala-yogies in Mummidivaram village in East Godavari of Dist. Andhra Pradesh, the EIder one started his penance at the age of 16 and the younger one at the age of 7 years respectively. They stopped taking any food and water and locked themselves in two separately built asharms from outside and the keys were kept in the custody of the District Magistrate. According to the wishes of the yogi, on Mahasivaratri day, in the midnight at the stroke of 12.00 without a watch, hissing sound would be heard and the doors were to be opened and the EIder yogi would give darshan to the devotees on a speciallyeracted platform at a distance of 500 sq. yards and after 10 minutes the door from outside would be closed and he would get himself seated on the platform after 10 minutes and thereafter the closed platform would be opened and throughout the day he would give darshan. The EIder yogi used to give darshan and retired back into Ashram on the next day midnight. Both brothers closed their eyes. There were neither windows to get air nor ventilators to exhaust air from inside. Keeping the ashram closed throughout the year without air, not only makes the life impossible to live but also bad Odour would emit contrarily when the doors were opened, perfume smell come out from the rooms. They did their ceaseless penance for well over 40 years. It is a miracle that they surpassed human physiology and they know the latest technological development. EIder yogi started his penance even when electricity was not known in the villages. He knows the mechanism of electrical operations and explained new developments in the country by his signals since he observed only silence. It is highly impossible to walk when they always keep themselves seated with crossed-legs. But within a short period of 5 to 10 minutes, he used to reach the platform. It is also impossible to know how they know the latest technological developments when they closed the eyes and lock themselves in the Ashram. These revelation are inexplicable and how they survive doing penance for more than 40 years without taking any food and water and without excretions and bath When the doors were opened, it would be seen that they appear as if they just had bath and had wet clothes but nothing could be found. The entire room gives perfume smell. It is difficult to explain these miracles where from such perfume smell comes and not a particle of dust was found in the rooms. India has produced several such great saints and yogies but these are only illustrative.10. Be that as it may, it cannot be gainsaid that providing access to the temples is not a public purpose. The exercise of the power under s.4(1) of the Act, therefore, is neither colourable nor malafide. It is true that this court in Tata Cellular v. Union of India, 1994(3) Scale, 477, by a bench of three Judges, considering the scope of judicial review of the administrative action (grant of licence by tenders) held that the administrative actions of the State or its instrumentalities are amenable to judicial review. As mentioned earlier when the State Govt. have exercised the power under s.4(1) for a public purpose and the public purpose was mentioned therein, the exercise of the power cannot be invalidated on grounds of malafides or colourable exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists at the time of exercise of the power. It is primarily for the State Government to decide whether there exists public purpose or not, and it is not for this Court or the High Courts to evaluate the evidence and come to its own conclusion whether or not there is public purpose unless it comes to the conclusion that it is a malafide or colourable exercise of the power. In other words the exercise of the power serve no public purpose or it serves a private purpose.11. It is true that an attempt was made on an earlier occasion to purchase the property by negotiation but it was turned down by the Charity Commissioner and he refused to grant permission. Consequently, the trust was constrained to approach the government requesting to acquire the land. The government did consider the circumstances and exercised that power. The Act does give the power to negotiate by private sale or even during pending acquisition proceedings negotiations by private sale could be made in which event the need to determine the market value under the Act would be obviated and the compensation would be determined in terms of the agreement reached between the Land Acquisition Officer and the owner of the land or person having an interest in the land, subject to the prior approval of the Govt. Therefore, the failure to purchase the land by negotiation and the exercise of the power under s.4(1) thereafter, by no stretch of imagination, be considered to be a mala fide or colourable exercise of the power. Therefore, we do not find any infirmity or illegality in the notification published under s.4(1) warranting interference. 12. | 0[ds]7. The contention that it is also a malafide exercise of power has no legs to stand. In Abdul Husein Tayabali & Ors. v. State of Gujarat & Ors., 1968(1) SCR 797, a bench of three Judges of this Court considered whether the State Govt. has exercised the power mala fide without applying its mind to the facts of the case. Considering the facts of that case and the allegations made in the petition and the counter affidavit filed by the State Govt. explaining the circumstances in which the notification under s.4(1) and the declaration under s.6(3) came to be published, i.t was held that it is not a mala fide exercise of the power. Enquiry under s.5A was conducted and a report submitted thereunder was considered and then the declaration under s.6(1) was published. It is seen that in this case even before the enquiry under s.5A was conducted and the report submitted and the declaration under s.6(1) could be made, the appellants had approached the High Court and sought to have the notification published under s.4(1) quashed.8. It is seen that the public trust Saibaba Sansthan - Shirdi, needs the land for the public purpose, namely, two temples are needed to be connected by a road though the land occupied by the house sought to be acquired. It is true that Saibaba Temple at Shirdi is run by a public trust maintaining Saibaba Temple at Shirdi and other temples and Dharamshala prayer Hall. Thousands of pilgrims daily visit Saibaba Temple at Shiridi to pay their homage and seek blessings of the mystic secular saint Sri Saibaba. Each religion claims that he belongs to their faith but the great saint never proclaimed himself to be of a particular faith. Therefore, all sections of the people in India have great unflinching faith, devotion and absolute belief in him and every day thousands of pilgrims throng Shirdi to pay their homage and seek his blessings. Though physically he was not present, the devotees believe that he is still surviving.9. The land of India is known for such great saints and yogies hailing from different faiths. One good example is of two brothers, by name, EIder and Younger, bala-yogies in Mummidivaram village in East Godavari of Dist. Andhra Pradesh, the EIder one started his penance at the age of 16 and the younger one at the age of 7 years respectively. They stopped taking any food and water and locked themselves in two separately built asharms from outside and the keys were kept in the custody of the District Magistrate. According to the wishes of the yogi, on Mahasivaratri day, in the midnight at the stroke of 12.00 without a watch, hissing sound would be heard and the doors were to be opened and the EIder yogi would give darshan to the devotees on a speciallyeracted platform at a distance of 500 sq. yards and after 10 minutes the door from outside would be closed and he would get himself seated on the platform after 10 minutes and thereafter the closed platform would be opened and throughout the day he would give darshan. The EIder yogi used to give darshan and retired back into Ashram on the next day midnight. Both brothers closed their eyes. There were neither windows to get air nor ventilators to exhaust air from inside. Keeping the ashram closed throughout the year without air, not only makes the life impossible to live but also bad Odour would emit contrarily when the doors were opened, perfume smell come out from the rooms. They did their ceaseless penance for well over 40 years. It is a miracle that they surpassed human physiology and they know the latest technological development. EIder yogi started his penance even when electricity was not known in the villages. He knows the mechanism of electrical operations and explained new developments in the country by his signals since he observed only silence. It is highly impossible to walk when they always keep themselves seated with crossed-legs. But within a short period of 5 to 10 minutes, he used to reach the platform. It is also impossible to know how they know the latest technological developments when they closed the eyes and lock themselves in the Ashram. These revelation are inexplicable and how they survive doing penance for more than 40 years without taking any food and water and without excretions and bath When the doors were opened, it would be seen that they appear as if they just had bath and had wet clothes but nothing could be found. The entire room gives perfume smell. It is difficult to explain these miracles where from such perfume smell comes and not a particle of dust was found in the rooms. India has produced several such great saints and yogies but these are only illustrative.10. Be that as it may, it cannot be gainsaid that providing access to the temples is not a public purpose. The exercise of the power under s.4(1) of the Act, therefore, is neither colourable nor malafide. It is true that this court in Tata Cellular v. Union of India, 1994(3) Scale, 477, by a bench of three Judges, considering the scope of judicial review of the administrative action (grant of licence by tenders) held that the administrative actions of the State or its instrumentalities are amenable to judicial review. As mentioned earlier when the State Govt. have exercised the power under s.4(1) for a public purpose and the public purpose was mentioned therein, the exercise of the power cannot be invalidated on grounds of malafides or colourable exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists at the time of exercise of the power. It is primarily for the State Government to decide whether there exists public purpose or not, and it is not for this Court or the High Courts to evaluate the evidence and come to its own conclusion whether or not there is public purpose unless it comes to the conclusion that it is a malafide or colourable exercise of the power. In other words the exercise of the power serve no public purpose or it serves a private purpose.11. It is true that an attempt was made on an earlier occasion to purchase the property by negotiation but it was turned down by the Charity Commissioner and he refused to grant permission. Consequently, the trust was constrained to approach the government requesting to acquire the land. The government did consider the circumstances and exercised that power. The Act does give the power to negotiate by private sale or even during pending acquisition proceedings negotiations by private sale could be made in which event the need to determine the market value under the Act would be obviated and the compensation would be determined in terms of the agreement reached between the Land Acquisition Officer and the owner of the land or person having an interest in the land, subject to the prior approval of the Govt. Therefore, the failure to purchase the land by negotiation and the exercise of the power under s.4(1) thereafter, by no stretch of imagination, be considered to be a mala fide or colourable exercise of the power. Therefore, we do not find any infirmity or illegality in the notification published under s.4(1) warranting interference. | 0 | 3,800 | 1,361 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
at Shirdi and other temples and Dharamshala prayer Hall. Thousands of pilgrims daily visit Saibaba Temple at Shiridi to pay their homage and seek blessings of the mystic secular saint Sri Saibaba. Each religion claims that he belongs to their faith but the great saint never proclaimed himself to be of a particular faith. Therefore, all sections of the people in India have great unflinching faith, devotion and absolute belief in him and every day thousands of pilgrims throng Shirdi to pay their homage and seek his blessings. Though physically he was not present, the devotees believe that he is still surviving.9. The land of India is known for such great saints and yogies hailing from different faiths. One good example is of two brothers, by name, EIder and Younger, bala-yogies in Mummidivaram village in East Godavari of Dist. Andhra Pradesh, the EIder one started his penance at the age of 16 and the younger one at the age of 7 years respectively. They stopped taking any food and water and locked themselves in two separately built asharms from outside and the keys were kept in the custody of the District Magistrate. According to the wishes of the yogi, on Mahasivaratri day, in the midnight at the stroke of 12.00 without a watch, hissing sound would be heard and the doors were to be opened and the EIder yogi would give darshan to the devotees on a speciallyeracted platform at a distance of 500 sq. yards and after 10 minutes the door from outside would be closed and he would get himself seated on the platform after 10 minutes and thereafter the closed platform would be opened and throughout the day he would give darshan. The EIder yogi used to give darshan and retired back into Ashram on the next day midnight. Both brothers closed their eyes. There were neither windows to get air nor ventilators to exhaust air from inside. Keeping the ashram closed throughout the year without air, not only makes the life impossible to live but also bad Odour would emit contrarily when the doors were opened, perfume smell come out from the rooms. They did their ceaseless penance for well over 40 years. It is a miracle that they surpassed human physiology and they know the latest technological development. EIder yogi started his penance even when electricity was not known in the villages. He knows the mechanism of electrical operations and explained new developments in the country by his signals since he observed only silence. It is highly impossible to walk when they always keep themselves seated with crossed-legs. But within a short period of 5 to 10 minutes, he used to reach the platform. It is also impossible to know how they know the latest technological developments when they closed the eyes and lock themselves in the Ashram. These revelation are inexplicable and how they survive doing penance for more than 40 years without taking any food and water and without excretions and bath When the doors were opened, it would be seen that they appear as if they just had bath and had wet clothes but nothing could be found. The entire room gives perfume smell. It is difficult to explain these miracles where from such perfume smell comes and not a particle of dust was found in the rooms. India has produced several such great saints and yogies but these are only illustrative.10. Be that as it may, it cannot be gainsaid that providing access to the temples is not a public purpose. The exercise of the power under s.4(1) of the Act, therefore, is neither colourable nor malafide. It is true that this court in Tata Cellular v. Union of India, 1994(3) Scale, 477, by a bench of three Judges, considering the scope of judicial review of the administrative action (grant of licence by tenders) held that the administrative actions of the State or its instrumentalities are amenable to judicial review. As mentioned earlier when the State Govt. have exercised the power under s.4(1) for a public purpose and the public purpose was mentioned therein, the exercise of the power cannot be invalidated on grounds of malafides or colourable exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists at the time of exercise of the power. It is primarily for the State Government to decide whether there exists public purpose or not, and it is not for this Court or the High Courts to evaluate the evidence and come to its own conclusion whether or not there is public purpose unless it comes to the conclusion that it is a malafide or colourable exercise of the power. In other words the exercise of the power serve no public purpose or it serves a private purpose.11. It is true that an attempt was made on an earlier occasion to purchase the property by negotiation but it was turned down by the Charity Commissioner and he refused to grant permission. Consequently, the trust was constrained to approach the government requesting to acquire the land. The government did consider the circumstances and exercised that power. The Act does give the power to negotiate by private sale or even during pending acquisition proceedings negotiations by private sale could be made in which event the need to determine the market value under the Act would be obviated and the compensation would be determined in terms of the agreement reached between the Land Acquisition Officer and the owner of the land or person having an interest in the land, subject to the prior approval of the Govt. Therefore, the failure to purchase the land by negotiation and the exercise of the power under s.4(1) thereafter, by no stretch of imagination, be considered to be a mala fide or colourable exercise of the power. Therefore, we do not find any infirmity or illegality in the notification published under s.4(1) warranting interference. 12.
### Response:
0
### Explanation:
Temple at Shirdi and other temples and Dharamshala prayer Hall. Thousands of pilgrims daily visit Saibaba Temple at Shiridi to pay their homage and seek blessings of the mystic secular saint Sri Saibaba. Each religion claims that he belongs to their faith but the great saint never proclaimed himself to be of a particular faith. Therefore, all sections of the people in India have great unflinching faith, devotion and absolute belief in him and every day thousands of pilgrims throng Shirdi to pay their homage and seek his blessings. Though physically he was not present, the devotees believe that he is still surviving.9. The land of India is known for such great saints and yogies hailing from different faiths. One good example is of two brothers, by name, EIder and Younger, bala-yogies in Mummidivaram village in East Godavari of Dist. Andhra Pradesh, the EIder one started his penance at the age of 16 and the younger one at the age of 7 years respectively. They stopped taking any food and water and locked themselves in two separately built asharms from outside and the keys were kept in the custody of the District Magistrate. According to the wishes of the yogi, on Mahasivaratri day, in the midnight at the stroke of 12.00 without a watch, hissing sound would be heard and the doors were to be opened and the EIder yogi would give darshan to the devotees on a speciallyeracted platform at a distance of 500 sq. yards and after 10 minutes the door from outside would be closed and he would get himself seated on the platform after 10 minutes and thereafter the closed platform would be opened and throughout the day he would give darshan. The EIder yogi used to give darshan and retired back into Ashram on the next day midnight. Both brothers closed their eyes. There were neither windows to get air nor ventilators to exhaust air from inside. Keeping the ashram closed throughout the year without air, not only makes the life impossible to live but also bad Odour would emit contrarily when the doors were opened, perfume smell come out from the rooms. They did their ceaseless penance for well over 40 years. It is a miracle that they surpassed human physiology and they know the latest technological development. EIder yogi started his penance even when electricity was not known in the villages. He knows the mechanism of electrical operations and explained new developments in the country by his signals since he observed only silence. It is highly impossible to walk when they always keep themselves seated with crossed-legs. But within a short period of 5 to 10 minutes, he used to reach the platform. It is also impossible to know how they know the latest technological developments when they closed the eyes and lock themselves in the Ashram. These revelation are inexplicable and how they survive doing penance for more than 40 years without taking any food and water and without excretions and bath When the doors were opened, it would be seen that they appear as if they just had bath and had wet clothes but nothing could be found. The entire room gives perfume smell. It is difficult to explain these miracles where from such perfume smell comes and not a particle of dust was found in the rooms. India has produced several such great saints and yogies but these are only illustrative.10. Be that as it may, it cannot be gainsaid that providing access to the temples is not a public purpose. The exercise of the power under s.4(1) of the Act, therefore, is neither colourable nor malafide. It is true that this court in Tata Cellular v. Union of India, 1994(3) Scale, 477, by a bench of three Judges, considering the scope of judicial review of the administrative action (grant of licence by tenders) held that the administrative actions of the State or its instrumentalities are amenable to judicial review. As mentioned earlier when the State Govt. have exercised the power under s.4(1) for a public purpose and the public purpose was mentioned therein, the exercise of the power cannot be invalidated on grounds of malafides or colourable exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists at the time of exercise of the power. It is primarily for the State Government to decide whether there exists public purpose or not, and it is not for this Court or the High Courts to evaluate the evidence and come to its own conclusion whether or not there is public purpose unless it comes to the conclusion that it is a malafide or colourable exercise of the power. In other words the exercise of the power serve no public purpose or it serves a private purpose.11. It is true that an attempt was made on an earlier occasion to purchase the property by negotiation but it was turned down by the Charity Commissioner and he refused to grant permission. Consequently, the trust was constrained to approach the government requesting to acquire the land. The government did consider the circumstances and exercised that power. The Act does give the power to negotiate by private sale or even during pending acquisition proceedings negotiations by private sale could be made in which event the need to determine the market value under the Act would be obviated and the compensation would be determined in terms of the agreement reached between the Land Acquisition Officer and the owner of the land or person having an interest in the land, subject to the prior approval of the Govt. Therefore, the failure to purchase the land by negotiation and the exercise of the power under s.4(1) thereafter, by no stretch of imagination, be considered to be a mala fide or colourable exercise of the power. Therefore, we do not find any infirmity or illegality in the notification published under s.4(1) warranting interference.
|
National Conduits (P) Ltd Vs. S. S. Arora | the affairs of the Company and oppression of the minority share-holders by the group of Anandi Lal was to file a petition under Ss. 397 and 398 of the Companies Act. The learned Judge further held that the petition for winding up was instituted with a view "to unfairly prejudice the interests of the share-holders of the Company ", respondent having set up a rival factory in the name of his son for manufacturing electric conduit pipes. The learned Judge directed that the petition be not advertised and be dismissed.3. In appeal against the order passed by H. R. Khanna, J., the High Court of Delhi held that under the Companies (Court) Rules, 1959, once a petition is admitted to the file, the Court is bound forthwith to advertise the petition. The Company challenges that order in this appeal.4. Rule 96 of "The Companies (Court) Rules. 1959" framed by this Court provides :"Upon the filing of the petition, it shall he posted before the Judge in Chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to the advertisement to he published and the persons, if any, upon whom copies of the petition are to be served. The Judge may if he thinks fit, direct notice to be given to the company before giving directions as to the advertisement of the petition."Rule 24 which relates to advertisement of petitions provides :"(1) Where any petition is required to be advertised, it shall, unless the Judge otherwise orders, or these Rules otherwise provide, be advertised not less than fourteen days before the date fixed for hearing, in one issue of the Official Gazette of the State or the Union Territory concerned, and in one issue each of a daily newspaper in the English language and a daily newspaper the regional language circulating in the State or the Union Territory concerned, as may be fixed by the Judge.2. Except in the case of a petition to wind up a company, the Judge may, if he thinks fit, dispense with any advertisement required by these Rules".When a petition is filed before the High Court for winding up of a company under the order of the Court, the High Court (i) may issue notice to the Company to show cause why the petition should not be admitted; (ii) may admit the petition and fix a date for hearing, and issue a notice to the Company before giving directions about advertisement of the petition ; or (iii) may admit the petition fix the date of hearing of the petition, and order that the petition be advertised and direct that the petition be served upon persons specified in the order.A petition for winding up cannot be placed for hearing before the Court unless the petition is advertised; that is clear from the terms of R. 24 (2). that is not to say that as soon as the petition is admitted, it must be advertised. In answer to a notice to show cause why a petition for winding up be not admitted, the Company may show cause and contend that the filing of the petition amounts to an abuse of the process of the Court. If the petition is admitted, it is still open to the Company to move the Court that in the interest of justice or to prevent abuse of the process of Court, the petition be not advertised. Such an applications may be made where the Court has issued notice under the last Clause of R. 96, and even when there is an unconditional admission of the petition for winding up.The power to entertain such an application of the Company is inherent in the Court, and R. 9 of the Companies Court Rules, 1959, which reads :"Nothing in these Rules shall he deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice to prevent abuse of the process of the Court."iterates that power. In, In re A Company, (1894) 2 Ch 349 it was held that it the petition is not presented in good faith and for the legitimate purpose of obtaining a winding-up order, but for other purpose such as putting pressure on the Company, the Court will restrain the advertisement of the petition and stay all further proceedings upon it.We may state that the High Court of Punjab in Lord Krishna Sugar Mills Ltd. v. Smt. Abnash Kaur, AIR 1961 Punjab 505 was right in observing that the Court in an appropriate case has the power to suspend advertisement of a petition for winding up, pending disposal of an application for revoking the order of admission of the petition, though we may hasten to state that we cannot agree with all the observations made in that judgment.5. H. R. Khanna, J., was apparently satisfied that the petition was not a bona fide petition and the respondent in presenting the petition was acting with ulterior motive and his attempt to obtain an order for winding up was "unreasonable". Before the High Court directed that the petition for winding up be advertised, the High Court was bound to consider whether the view expressed by H. R. Khanna, J., was right.6. For reasons already set out in our judgment, the High Court erred in holding that a petition for winding up must be advertised even before the application filed by the Company for staying the proceeding for the ends of justice, or to prevent abuse of the process of the Court.The view taken by the High Court that the Court must, as soon as the petition is admitted, advertise the petition is contrary to the plain terms of Rule 96. Such a view, if accepted, would make the Court an instrument, in possible cases of harassment and even of blackmail, for once a petition is advertised, the business of the Company is bound to suffer serious loss and injury. | 1[ds]We may state that the High Court of Punjab in Lord Krishna Sugar Mills Ltd. v. Smt. Abnash Kaur, AIR 1961 Punjab 505 was right in observing that the Court in an appropriate case has the power to suspend advertisement of a petition for winding up, pending disposal of an application for revoking the order of admission of the petition, though we may hasten to state that we cannot agree with all the observations made in that judgment.For reasons already set out in our judgment, the High Court erred in holding that a petition for winding up must be advertised even before the application filed by the Company for staying the proceeding for the ends of justice, or to prevent abuse of the process of the Court.The view taken by the High Court that the Court must, as soon as the petition is admitted, advertise the petition is contrary to the plain terms of Rule 96. Such a view, if accepted, would make the Court an instrument, in possible cases of harassment and even of blackmail, for once a petition is advertised, the business of the Company is bound to suffer serious loss and injury. | 1 | 1,425 | 215 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the affairs of the Company and oppression of the minority share-holders by the group of Anandi Lal was to file a petition under Ss. 397 and 398 of the Companies Act. The learned Judge further held that the petition for winding up was instituted with a view "to unfairly prejudice the interests of the share-holders of the Company ", respondent having set up a rival factory in the name of his son for manufacturing electric conduit pipes. The learned Judge directed that the petition be not advertised and be dismissed.3. In appeal against the order passed by H. R. Khanna, J., the High Court of Delhi held that under the Companies (Court) Rules, 1959, once a petition is admitted to the file, the Court is bound forthwith to advertise the petition. The Company challenges that order in this appeal.4. Rule 96 of "The Companies (Court) Rules. 1959" framed by this Court provides :"Upon the filing of the petition, it shall he posted before the Judge in Chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to the advertisement to he published and the persons, if any, upon whom copies of the petition are to be served. The Judge may if he thinks fit, direct notice to be given to the company before giving directions as to the advertisement of the petition."Rule 24 which relates to advertisement of petitions provides :"(1) Where any petition is required to be advertised, it shall, unless the Judge otherwise orders, or these Rules otherwise provide, be advertised not less than fourteen days before the date fixed for hearing, in one issue of the Official Gazette of the State or the Union Territory concerned, and in one issue each of a daily newspaper in the English language and a daily newspaper the regional language circulating in the State or the Union Territory concerned, as may be fixed by the Judge.2. Except in the case of a petition to wind up a company, the Judge may, if he thinks fit, dispense with any advertisement required by these Rules".When a petition is filed before the High Court for winding up of a company under the order of the Court, the High Court (i) may issue notice to the Company to show cause why the petition should not be admitted; (ii) may admit the petition and fix a date for hearing, and issue a notice to the Company before giving directions about advertisement of the petition ; or (iii) may admit the petition fix the date of hearing of the petition, and order that the petition be advertised and direct that the petition be served upon persons specified in the order.A petition for winding up cannot be placed for hearing before the Court unless the petition is advertised; that is clear from the terms of R. 24 (2). that is not to say that as soon as the petition is admitted, it must be advertised. In answer to a notice to show cause why a petition for winding up be not admitted, the Company may show cause and contend that the filing of the petition amounts to an abuse of the process of the Court. If the petition is admitted, it is still open to the Company to move the Court that in the interest of justice or to prevent abuse of the process of Court, the petition be not advertised. Such an applications may be made where the Court has issued notice under the last Clause of R. 96, and even when there is an unconditional admission of the petition for winding up.The power to entertain such an application of the Company is inherent in the Court, and R. 9 of the Companies Court Rules, 1959, which reads :"Nothing in these Rules shall he deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice to prevent abuse of the process of the Court."iterates that power. In, In re A Company, (1894) 2 Ch 349 it was held that it the petition is not presented in good faith and for the legitimate purpose of obtaining a winding-up order, but for other purpose such as putting pressure on the Company, the Court will restrain the advertisement of the petition and stay all further proceedings upon it.We may state that the High Court of Punjab in Lord Krishna Sugar Mills Ltd. v. Smt. Abnash Kaur, AIR 1961 Punjab 505 was right in observing that the Court in an appropriate case has the power to suspend advertisement of a petition for winding up, pending disposal of an application for revoking the order of admission of the petition, though we may hasten to state that we cannot agree with all the observations made in that judgment.5. H. R. Khanna, J., was apparently satisfied that the petition was not a bona fide petition and the respondent in presenting the petition was acting with ulterior motive and his attempt to obtain an order for winding up was "unreasonable". Before the High Court directed that the petition for winding up be advertised, the High Court was bound to consider whether the view expressed by H. R. Khanna, J., was right.6. For reasons already set out in our judgment, the High Court erred in holding that a petition for winding up must be advertised even before the application filed by the Company for staying the proceeding for the ends of justice, or to prevent abuse of the process of the Court.The view taken by the High Court that the Court must, as soon as the petition is admitted, advertise the petition is contrary to the plain terms of Rule 96. Such a view, if accepted, would make the Court an instrument, in possible cases of harassment and even of blackmail, for once a petition is advertised, the business of the Company is bound to suffer serious loss and injury.
### Response:
1
### Explanation:
We may state that the High Court of Punjab in Lord Krishna Sugar Mills Ltd. v. Smt. Abnash Kaur, AIR 1961 Punjab 505 was right in observing that the Court in an appropriate case has the power to suspend advertisement of a petition for winding up, pending disposal of an application for revoking the order of admission of the petition, though we may hasten to state that we cannot agree with all the observations made in that judgment.For reasons already set out in our judgment, the High Court erred in holding that a petition for winding up must be advertised even before the application filed by the Company for staying the proceeding for the ends of justice, or to prevent abuse of the process of the Court.The view taken by the High Court that the Court must, as soon as the petition is admitted, advertise the petition is contrary to the plain terms of Rule 96. Such a view, if accepted, would make the Court an instrument, in possible cases of harassment and even of blackmail, for once a petition is advertised, the business of the Company is bound to suffer serious loss and injury.
|
V.M. Salgoacar And Brother Ltd Vs. Union Of India | ought to be determined. The High Court, instead of adopting that procedure, had concluded on wrong premise that the lands are situated at 6 kms away from the developing lands and held that the sale instances are irrelevant and having excluded those sale instances confirmed the award given by the Collector. The potential value was not taken into consideration to determine compensation. The view taken by the High Court is, thereby bristled with illegality warranting interference. Learned counsel for the State contended that the sale instances not only are small but few of them are post-notification sales. The land under acquisition has no approach road. There was a freeze for development. In view of these facts, there would be no potential buyers for the land in question. The appellant himself had purchased the property for the purpose of constructing the staff quarters but not for sale to the third party. Having realised that the property would be acquired for public purpose, the Government had frozen the appreciation with a view to see that the proper market value would be determined. The High Court, therefore, kept these facts at the back of its mind above (sic) consideration rightly and agreed that the market value would only be at Rs. 5 per sq. yd. and the District Judge was not justified in relying on sale instances to determine the market value3. Having given our anxious consideration to the respective considerations, the questions that would arise for consideration is whether the High Court was right in determining the market value @ Rs. 5 per sq. yd. Indisputably, the appellant had purchased the very land in 1965 for a total consideration of Rs. 60, 000. He intended to use this property for the purpose of construction of staff quarters and for his own use. The Land Acquisition Officer has taken that factor as a base and then considered to what extent the appellant is entitled to the determination of the compensation. We think that the Land Acquisition Officer is right in starting with that premise and then to determine the market value. It is also an admitted fact that till April 1969 there was a freeze in the sale of land for any purpose. No doubt, the ground on which the freeze was imposed is not available from the record but it is common knowledge and that the fact is on record that in 1969 itself there was one notification issued for the same purpose which was later withdrawn and a fresh notification on 6-1-1970 was published in the Gazette. It is common knowledge that finalisation of the proposal for acquisition for public purpose would take long time, at different levels of the Government, to take a final shape. The Government issued a stay order freezing the developmental activities which was vacated in April 1969. Between April 1969 to the date of the notification in January 1970, there was some escalation in the market value. It is found from the record that the lands are situated in 1 km away from the Airport and 500 metres away from the Airport road. It would also be clear from the record that the High School was not established at the relevant time. Only three units have come up in the lands of the co-operative housing society. In other words till the date of the notification there was no appreciation in the value of the land except only a small area where private parties were permitted to set up residential units. Keeping these factors into consideration, the question arises whether the appellant is entitled to the market value at Rs. 50 per sq. m. on the basis of small scale transactions as determined by the District Judge. Taking all the above facts into consideration, we think that the District Judge has taken totally erroneous view in the matter. It is not the case of the appellant that he purchased the property with a view to sell to the third parties. It was purchased for construction of staff quarters. Therefore, the sale instances and the prices indicated therein are absolutely irrelevant for the purpose and determination of compensation to the acquired lands. As stated earlier, the appellant himself estimated the market value for the entire land at Rs. 60, 000 when he purchased the property in the year 1965. In the year it worked out @ Rs. 3.49 per sq. m. There is evidence on record that in 1967, the notification under Section 4(1) was published in the Gazette on 26-10-1967 acquiring a large extent of the land in LRC No. 28 of 1981 etc. In that case, ultimately, the High Court in FCA No. 27 of 1980 by its judgment and decree dated 4-9-1984 determined the compensation @ Rs. 3 per sq. yd. The lands under acquisition are adjacent to the lands acquired in 1967. When the High Court determined the market value of the adjacent lands acquired in 1967 at Rs. 3 per sq. yd., the District Judge committed palpable error of law in recording a finding that the above determination is irrelevant. The Land Acquisition Officer has rightly applied the principle of interest at compounded rate and then increased another Rs. 1.25 per sq. m. for determining the compensation and worked out at round figure of Rs. 5 sq. m. The High Court, therefore, had rightly concluded that the market value would approximate to be Rs. 5 per sq. m. and the District Judge committed gross error of law in determining the market value on the basis of sale instances and fixed at Rs. 50 per sq. m. It is true that in an appropriate case, the potential value of the land as on the date of the notification, realised or realisable price would form the base and would be taken into consideration for determining the compensation. But it is to be considered in the light of the facts and circumstances of each case. Even his plan for construction of staff quarters was not approved. | 0[ds]3. Having given our anxious consideration to the respective considerations, the questions that would arise for consideration is whether the High Court was right in determining the market value @ Rs. 5 per sq. yd. Indisputably, the appellant had purchased the very land in 1965 for a total consideration of Rs. 60, 000. He intended to use this property for the purpose of construction of staff quarters and for his own use. The Land Acquisition Officer has taken that factor as a base and then considered to what extent the appellant is entitled to the determination of the compensation. We think that the Land Acquisition Officer is right in starting with that premise and then to determine the market value. It is also an admitted fact that till April 1969 there was a freeze in the sale of land for any purpose. No doubt, the ground on which the freeze was imposed is not available from the record but it is common knowledge and that the fact is on record that in 1969 itself there was one notification issued for the same purpose which was later withdrawn and a fresh notification onwas published in the Gazette. It is common knowledge that finalisation of the proposal for acquisition for public purpose would take long time, at different levels of the Government, to take a final shape. The Government issued a stay order freezing the developmental activities which was vacated in April 1969. Between April 1969 to the date of the notification in January 1970, there was some escalation in the market value. It is found from the record that the lands are situated in 1 km away from the Airport and 500 metres away from the Airport road. It would also be clear from the record that the High School was not established at the relevant time. Only three units have come up in the lands of thehousing society. In other words till the date of the notification there was no appreciation in the value of the land except only a small area where private parties were permitted to set up residential units. Keeping these factors into consideration, the question arises whether the appellant is entitled to the market valueat Rs. 50 per sq. m.on the basis of small scale transactions as determined by the District Judge. Taking all the above facts into consideration, we think that the District Judge has taken totally erroneous view in the matter. It is not the case of the appellant that he purchased the property with a view to sell to the third parties. It was purchased for construction of staff quarters. Therefore, the sale instances and the prices indicated therein are absolutely irrelevant for the purpose and determination of compensation to the acquired lands. As stated earlier, the appellant himself estimated the market value for the entire land at Rs. 60, 000 when he purchased the property in the year 1965. In the year it worked out @ Rs. 3.49 per sq. m. There is evidence on record that in 1967, the notification under Section 4(1) was published in the Gazette onacquiring a large extent of the land in LRC No. 28 of 1981 etc. In that case, ultimately, the High Court in FCA No. 27 of 1980 by its judgment and decree dateddetermined the compensation @ Rs. 3 per sq. yd. The lands under acquisition are adjacent to the lands acquired in 1967. When the High Court determined the market value of the adjacent lands acquired in 1967 at Rs. 3 per sq. yd., the District Judge committed palpable error of law in recording a finding that the above determination is irrelevant. The Land Acquisition Officer has rightly applied the principle of interest at compounded rate and then increased another Rs. 1.25 per sq. m. for determining the compensation and worked out at round figure of Rs. 5 sq. m. The High Court, therefore, had rightly concluded that the market value would approximate to be Rs. 5 per sq. m. and the District Judge committed gross error of law in determining the market value on the basis of sale instances and fixedat Rs. 50 per sq. m.It is true that in an appropriate case, the potential value of the land as on the date of the notification, realised or realisable price would form the base and would be taken into consideration for determining the compensation. But it is to be considered in the light of the facts and circumstances of each case. Even his plan for construction of staff quarters was not approved | 0 | 1,442 | 836 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
ought to be determined. The High Court, instead of adopting that procedure, had concluded on wrong premise that the lands are situated at 6 kms away from the developing lands and held that the sale instances are irrelevant and having excluded those sale instances confirmed the award given by the Collector. The potential value was not taken into consideration to determine compensation. The view taken by the High Court is, thereby bristled with illegality warranting interference. Learned counsel for the State contended that the sale instances not only are small but few of them are post-notification sales. The land under acquisition has no approach road. There was a freeze for development. In view of these facts, there would be no potential buyers for the land in question. The appellant himself had purchased the property for the purpose of constructing the staff quarters but not for sale to the third party. Having realised that the property would be acquired for public purpose, the Government had frozen the appreciation with a view to see that the proper market value would be determined. The High Court, therefore, kept these facts at the back of its mind above (sic) consideration rightly and agreed that the market value would only be at Rs. 5 per sq. yd. and the District Judge was not justified in relying on sale instances to determine the market value3. Having given our anxious consideration to the respective considerations, the questions that would arise for consideration is whether the High Court was right in determining the market value @ Rs. 5 per sq. yd. Indisputably, the appellant had purchased the very land in 1965 for a total consideration of Rs. 60, 000. He intended to use this property for the purpose of construction of staff quarters and for his own use. The Land Acquisition Officer has taken that factor as a base and then considered to what extent the appellant is entitled to the determination of the compensation. We think that the Land Acquisition Officer is right in starting with that premise and then to determine the market value. It is also an admitted fact that till April 1969 there was a freeze in the sale of land for any purpose. No doubt, the ground on which the freeze was imposed is not available from the record but it is common knowledge and that the fact is on record that in 1969 itself there was one notification issued for the same purpose which was later withdrawn and a fresh notification on 6-1-1970 was published in the Gazette. It is common knowledge that finalisation of the proposal for acquisition for public purpose would take long time, at different levels of the Government, to take a final shape. The Government issued a stay order freezing the developmental activities which was vacated in April 1969. Between April 1969 to the date of the notification in January 1970, there was some escalation in the market value. It is found from the record that the lands are situated in 1 km away from the Airport and 500 metres away from the Airport road. It would also be clear from the record that the High School was not established at the relevant time. Only three units have come up in the lands of the co-operative housing society. In other words till the date of the notification there was no appreciation in the value of the land except only a small area where private parties were permitted to set up residential units. Keeping these factors into consideration, the question arises whether the appellant is entitled to the market value at Rs. 50 per sq. m. on the basis of small scale transactions as determined by the District Judge. Taking all the above facts into consideration, we think that the District Judge has taken totally erroneous view in the matter. It is not the case of the appellant that he purchased the property with a view to sell to the third parties. It was purchased for construction of staff quarters. Therefore, the sale instances and the prices indicated therein are absolutely irrelevant for the purpose and determination of compensation to the acquired lands. As stated earlier, the appellant himself estimated the market value for the entire land at Rs. 60, 000 when he purchased the property in the year 1965. In the year it worked out @ Rs. 3.49 per sq. m. There is evidence on record that in 1967, the notification under Section 4(1) was published in the Gazette on 26-10-1967 acquiring a large extent of the land in LRC No. 28 of 1981 etc. In that case, ultimately, the High Court in FCA No. 27 of 1980 by its judgment and decree dated 4-9-1984 determined the compensation @ Rs. 3 per sq. yd. The lands under acquisition are adjacent to the lands acquired in 1967. When the High Court determined the market value of the adjacent lands acquired in 1967 at Rs. 3 per sq. yd., the District Judge committed palpable error of law in recording a finding that the above determination is irrelevant. The Land Acquisition Officer has rightly applied the principle of interest at compounded rate and then increased another Rs. 1.25 per sq. m. for determining the compensation and worked out at round figure of Rs. 5 sq. m. The High Court, therefore, had rightly concluded that the market value would approximate to be Rs. 5 per sq. m. and the District Judge committed gross error of law in determining the market value on the basis of sale instances and fixed at Rs. 50 per sq. m. It is true that in an appropriate case, the potential value of the land as on the date of the notification, realised or realisable price would form the base and would be taken into consideration for determining the compensation. But it is to be considered in the light of the facts and circumstances of each case. Even his plan for construction of staff quarters was not approved.
### Response:
0
### Explanation:
3. Having given our anxious consideration to the respective considerations, the questions that would arise for consideration is whether the High Court was right in determining the market value @ Rs. 5 per sq. yd. Indisputably, the appellant had purchased the very land in 1965 for a total consideration of Rs. 60, 000. He intended to use this property for the purpose of construction of staff quarters and for his own use. The Land Acquisition Officer has taken that factor as a base and then considered to what extent the appellant is entitled to the determination of the compensation. We think that the Land Acquisition Officer is right in starting with that premise and then to determine the market value. It is also an admitted fact that till April 1969 there was a freeze in the sale of land for any purpose. No doubt, the ground on which the freeze was imposed is not available from the record but it is common knowledge and that the fact is on record that in 1969 itself there was one notification issued for the same purpose which was later withdrawn and a fresh notification onwas published in the Gazette. It is common knowledge that finalisation of the proposal for acquisition for public purpose would take long time, at different levels of the Government, to take a final shape. The Government issued a stay order freezing the developmental activities which was vacated in April 1969. Between April 1969 to the date of the notification in January 1970, there was some escalation in the market value. It is found from the record that the lands are situated in 1 km away from the Airport and 500 metres away from the Airport road. It would also be clear from the record that the High School was not established at the relevant time. Only three units have come up in the lands of thehousing society. In other words till the date of the notification there was no appreciation in the value of the land except only a small area where private parties were permitted to set up residential units. Keeping these factors into consideration, the question arises whether the appellant is entitled to the market valueat Rs. 50 per sq. m.on the basis of small scale transactions as determined by the District Judge. Taking all the above facts into consideration, we think that the District Judge has taken totally erroneous view in the matter. It is not the case of the appellant that he purchased the property with a view to sell to the third parties. It was purchased for construction of staff quarters. Therefore, the sale instances and the prices indicated therein are absolutely irrelevant for the purpose and determination of compensation to the acquired lands. As stated earlier, the appellant himself estimated the market value for the entire land at Rs. 60, 000 when he purchased the property in the year 1965. In the year it worked out @ Rs. 3.49 per sq. m. There is evidence on record that in 1967, the notification under Section 4(1) was published in the Gazette onacquiring a large extent of the land in LRC No. 28 of 1981 etc. In that case, ultimately, the High Court in FCA No. 27 of 1980 by its judgment and decree dateddetermined the compensation @ Rs. 3 per sq. yd. The lands under acquisition are adjacent to the lands acquired in 1967. When the High Court determined the market value of the adjacent lands acquired in 1967 at Rs. 3 per sq. yd., the District Judge committed palpable error of law in recording a finding that the above determination is irrelevant. The Land Acquisition Officer has rightly applied the principle of interest at compounded rate and then increased another Rs. 1.25 per sq. m. for determining the compensation and worked out at round figure of Rs. 5 sq. m. The High Court, therefore, had rightly concluded that the market value would approximate to be Rs. 5 per sq. m. and the District Judge committed gross error of law in determining the market value on the basis of sale instances and fixedat Rs. 50 per sq. m.It is true that in an appropriate case, the potential value of the land as on the date of the notification, realised or realisable price would form the base and would be taken into consideration for determining the compensation. But it is to be considered in the light of the facts and circumstances of each case. Even his plan for construction of staff quarters was not approved
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Rattan Singh & Ors Vs. Nirmal Gill & Ors. etc | has come to the conclusion that the disputed documents were executed by Harcharan Kaur (Joginder Kaur [sic]) on dated 29.06.1990, 28.06.1990, 03.07.1990, then in those circumstances, if any fraud etc. has been played upon by the plaintiff, the plaintiff was required to file the suit within the period of three years. So apparently the suit filed by the plaintiff is barred by limitation. Therefore, the said issues stand decided in favour of the defendants and against the plaintiff. (emphasis supplied) 75. The first appellate Court in its judgment confirmed the findings of the trial Court that the suits were barred by limitation. While doing so, the first appellate Court had also proceeded on the wrong premise that the family function was held in December, 2001. Finally, the first appellate Court held that since the 1990 GPA had been proved to have been executed by plaintiff, the question of acquiring knowledge in the family function loses significance. 76. In contrast, the High Court had noted that the factum of the family function and plaintiffs presence thereat was admitted by defendant No. 4. The High Court then went on to reverse the findings of the trial Court and the first appellate Court whilst opining the testimony of Rustam Singh cements the case of the plaintiff and it was apparent that the plaintiff had no reason to suspect her brothers at an earlier point of time and she was not even aware of the acts of the defendants. The said facts came to light only after the plaintiff conducted inquiries. The relevant portion of the High Courts judgment is set out hereunder: ..... … Learned courts below have further erred in holding that the suits are barred by limitation. The plaintiffs case is that she came to know about the fraud being perpetuated by her own step brothers and sister-in-law after she settled in Punjab, subsequent to the retirement of her husband and consequent increased frequency of her interaction with her relatives. Marriage of her paternal uncles son (Tayas son) is admitted by DW 6 Rattan Singh. It is further admitted that the plaintiff was present at the said wedding. Testimony of Rustam Singh cements the case of the plaintiff. ... (emphasis supplied) 77. Before analysing the correctness of the decisions arrived at, let us see the settled legal position as to effect of fraud on limitation as prescribed in Section 17 of the Limitation Act, 1963(for short, the 1963 Act). The said provision reads as under: 17.– Effect of fraud or mistake.- (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,— (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production ....... (emphasis supplied) 78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision. 79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is ex-facie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of non-existence of fraud. The concurring findings recorded by the trial Court and the first appellate Court - that the documents were executed by the plaintiff - belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001. Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard. CONCLUSION 80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants. 81. Suffice it to observe that since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex-facie barred by limitation. 82. As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their bonafides. | 1[ds]25. The fraud in the present lis is allegedly committed in respect of the 1990 GPA executed on 28.06.1990 and registered on 29.06.1990, and the Sale deeds executed and registered on 29.06.1990 and on 03.07.1990 respectively. We may examine the findings in respect of these documents separately.32. To appreciate the findings arrived at by the Courts below, we must first see on whom the onus of proof lies. The record reveals that the disputed documents are registered. We are, therefore, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, as held by this Court in Prem Singh and Ors. v. Birbal and Ors. (2006) 5 SCC 353 . The relevant portion of the said decision reads as below:27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.In view thereof, in the present cases, the initial onus was on the plaintiff, who had challenged the stated registered document.34. As the execution of the 1990 GPA and the sale deeds in the present cases is denied by the plaintiff, it became necessary for the plaintiff to examine the attesting witnesses of the disputed documents to establish her allegation about its non-execution. For, the documents had been registered on 29.06.1990 and came to be attested by Teja Singh Lamberdar and Gurcharan Singh. However, both the attesting witnesses were not examined. Indeed, Teja Singh had since died but there is nothing on record regarding availability of Gurcharan Singh. Thus, we must now advert to Section 69 of the 1872 Act which provides for proof when no attesting witness is found. The same is extracted below:69.- Proof where no attesting witness found.- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.. The fact that the subject documents were executed by plaintiff and attested by Teja Singh has been established from record in the shape of evidence of PW4 as well as defendant No.4. The signatures of Teja Singh were identified by DW2, who deposed that he was conversant with Urdu language and could identify the signature of Teja Singh, which was in Urdu language. Further, DW4 deposed that he used to pay land revenue to Teja Singh and received receipts from him. Moreover, the handwriting expert (DW7) had also compared the admitted signatures of Teja Singh with those on the disputed documents and opined that it was signed by him, while the expert produced by the plaintiff as PW10 had not examined the admitted signatures of Teja Singh. Therefore, the signatures of Teja Singh stood proved as per the opinion of expert (DW7) and stood corroborated by DW2 and DW4, independent witnesses.37. Here, the evidence of plaintiffs witness-PW4 comes to aid of the defendants as the same unveils that the stated documents were prepared on the basis of instructions of the plaintiff and had been duly executed by her in the presence of the attesting witnesses.38. At this stage, it may be noted that the trial Court and the first appellate Court had relied upon the evidence of PW4. The High Court, however, proceeded on surmises and conjectures and took a view which is perverse and tenuous. In that, the ground on which the High Court rejected the evidence of PW4 is that he was known to the defendant No. 4 since his school days. We do not find it to be a correct approach to disregard the credible testimony of the witness examined by the plaintiff herself (without declaring him as a hostile witness) and especially when it had come on record that the said scribe is a regular deed writer at the Tehsil complex, Dasuya. Notably, PW4 had not been declared hostile at the instance of the plaintiff and as such, this part of his testimony would be staring at the plaintiff.40. The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants.The requirement regarding shifting of burden onto the defendants had been succinctly discussed in Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558 , wherein this Court had held that for shifting the burden of proof, it would require more than merely pleading that the relationship is a fiduciary one and it must be proved by producing tangible evidence. The relevant extract of the said decision is reproduced as thus:8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:101. Burden of proof.—Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.10. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant- appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.11. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance.14. But before such a finding is arrived at, the averments as regards alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established.15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words active confidence indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.16. Thus, point for determination of binding interests or which are the cases which come within the rule of active confidence would vary from case to case. If the plaintiff fails to prove the existence of the fiduciary relationship or the position of active confidence held by the defendant-appellant, the burden would lie on him as he had alleged fraud. The trial court and the High Court, therefore, in our opinion, cannot be said to be correct in holding that without anything further, the burden of proof would be on the defendant.It is an admitted position that the plaintiff and defendants always had cordial relationship and the plaintiff was on visiting terms. Further, the fact that the defendant Nos. 3 and 4 were cultivating the joint lands is also not disputed. The defendant Nos. 3 and 4 were cultivating the lands along with their father Harbans Singh and continued to do so even after his death. The principle underlying the reported decision must come to the aid of defendants as the plaintiff had failed to prove the fact of misuse of trust by the defendants as such.43. Further, the plaintiff attempted to project the 1990 GPA as a doubtful document stating that the same had discrepancies with respect to the address and the alteration of the date of execution. In absence of the attesting witness and in view of the evidence of PW4 scribe, it was for the plaintiff to get PW4 declared hostile and cross examine him in order to prove that he had deposed falsely, which the plaintiff had failed to do.However, the same is of no avail to the plaintiff as the 1990 GPA was in respect of all her land holdings, whereas the sale was made only in respect of land situate at Kalyanpur village.45. The other reason weighed with the High Court that 1990 GPA was allegedly executed by the plaintiff as she being a woman is also of no consequence as the words being a lady were preceded by I am old and weak. Thus, the primary reason for executing the 1990 GPA was that the plaintiff was not residing in Punjab at the relevant point of time and that she was old and weak, and thus unable to look after her property situate at Punjab. The stress laid upon the fact that a woman was appointed in her place is, therefore, a matter of surmises and conjectures.46. Suffice it to observe that the contention that the registration of the 1990 GPA as well as the sale deeds, had been effected by impersonating the plaintiff has not been proved. No credible and tangible evidence has been led in that regard. It is merely a bald plea set up by the plaintiff.47. The plaintiffs denial of being acquainted with the attesting witnesses, is, also a ruse and not genuine. For, one of the attesting witnesses Teja Singh was a lamberdar of the village. A lamberdars job is to collect revenue in respect of the lands and issue receipts and as a practice, the lamberdar is called for attesting documents. Thus, when the plaintiff admittedly used to visit village frequently, her denial in knowing Teja Singh is far- fetched. This is what two Courts had opined and being a possible view, no interference by the High Court was warranted in that regard. That is beyond the scope of second appeal, as held by this Court in Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar (1998) 6 SCC 423 . The relevant paragraph of the said decision is extracted hereunder:16. At the outset, we would like to point out that the findings on facts by the lower appellate court as a final court of facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, we are of the view that the High Court, after reappreciating the evidence and without finding that the conclusions reached by the lower appellate court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view wasd in respect of sale deed dated 03.07.199053. Before analysing the evidence of DW3, it may be noted that since the sale deed requires attestation by two witnesses, as discussed above, the same has to be proved as per procedure laid down under Section 68 of the 1872 Act.54. The sale deed of 03.07.1990 had been attested by Teja Singh Lamberdar and Anoop Singh (DW3). The attesting witness (DW3) was examined and he had deposed that the said sale deed was executed by the plaintiff in his presence, as well as in presence of Teja Singh and defendant No. 3. He had denied presence of any other person. He stated that the sale consideration was paid at home directly and not in his presence. Indeed, he had failed to identify plaintiff in photographs.55. We may here refer to a decision of this Court in Damodar v. State of Rajasthan (2004) 12 SCC 336 , wherein it has been held that a hypersensitive approach ought not be taken in cases where there has been a delay in recording evidence. The relevant portion of the decision is extracted below:7. In order to consider the correctness of conclusions arrived at by the two courts below, it has to be seen whether evidence of PW 15 has been rightly accepted to be truthful and reliable. So far as PW 15 is concerned, it has to be noted that at the time of occurrence he was about 13 years of age and was a student. The incident is of October 1990. PW 15 was examined in August 1997 i.e. nearly after seven years. It cannot be lost sight of that long passage of time sometimes erases the memory and minute details are lost sight of. In this background, it has been stated that if a case is proved perfectly it is argued that it is artificial. If a case has some flaws inevitably because human beings are prone to err, it is argued that it is too imperfect. While, therefore, assessing the evidence one has to keep realities in view and not adopt a hypersensitive approach. The so-called discrepancies pointed out by the learned counsel for the appellants like the vehicle from which the witness saw the approaching bus or with which part of the offending vehicle the cycle was hit are too trifle to affect the credibility of PW 15s evidence. Filtering out these minor discrepancies, cream of the evidence remains on which the credibility of the evidence lies. That being so, the conclusions arrived at by the two courts below on evaluation of evidence do not need any interference.In the present cases, the disputed documents were executed in the year 1990 and the evidence of DW3 was recorded in the year 2007, after a passage of 17 long years. Thus, as discussed in the preceding paragraphs, the High Court erroneously doubted the evidence of DW3 merely because he could not identify photographs of plaintiff and because the defendant No. 4 and DW3 did not mention each others presence at the time of execution.56. Be that as it may, with reference to the said sale deed, the defendant No. 4 deposed that he was present at the time of execution of the sale deed on 03.07.1990 which was executed by the plaintiff in favour of defendants No. 3 and himself. He stated that Teja Singh and Gurcharan Singh were also present.58. The disputed sale deed dated 03.07.1990 was signed by plaintiff as vendor and defendant No. 3 as vendee and in the presence of DW3 and the other attesting witness Teja Singh. DW3 as an attesting witness had seen both plaintiff and defendant No. 3 signing the deed and he then attested the sale deed. The High Court also failed to note that the other attesting witness being dead and his signature having been identified by DW2 and DW4, and with the testimony of PW4 scribe, the evidence of the DW3 witness stood corroborated and therefore, the same could not be disregarded.60. It is noteworthy that defendant No. 4 had not signed the sale deed despite being a vendee. In Aloka Bose v. Parmatma Devi and Ors. (2009) 2 SCC 582 , it has been held that signature of the vendee is not mandatory in a sale deed. The relevant portion of the said decision is extracted hereunder:18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognised communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.19. The defendant next contended that the agreement of sale in this case (Ext. 2) was clearly in a form which required signatures of both the vendor and purchaser. It is pointed out that the agreement begins as: Agreement for sale between Kanika Bose and Parmatma Devi and not an Agreement of sale executed by Kanika Bose in favour of Parmatma Devi. Our attention is also drawn to the testimonium clause (the provision at the end of the instrument stating when and by whom it was signed) of the agreement, which reads thus:In witnesses whereof, the parties hereto have hereunto set and subscribed their respective hands and seals on these presents.It is therefore contended that the agreement specifically contemplated execution by both parties; and as it was not so executed, it was incomplete and unenforceable.20. We have carefully examined the agreement (Ext. 2), a photocopy of which is produced. The testimonium portion in the agreement is in an archaic form which has lost its meaning. Parties no longer subscribe their respective hands and seals. It is true that the format obviously contemplates signature by both parties. But it is clear that the intention of the parties was that it should be complete on signature by only the vendor. This is evident from the fact that the document is signed by the vendor and duly witnessed by four witnesses and was delivered to the purchaser. Apart from a separate endorsement made on the date of the agreement itself (7-9-1979) by the vendor acknowledging the receipt of Rs 2001 as advance, it also contains a second endorsement (which is also duly witnessed) made on 10-10-1979 by the vendor, acknowledging the receipt of a further sum of Rs 2000 and confirming that the total earnest money received was Rs 4001. This shows that the purchaser accepted and acted in terms of the agreement which was signed, witnessed and delivered to her as a complete instrument and that she then obtained an endorsement thereon by the vendor, in regard to second payment. If the agreement was not complete, the vendor would not have received a further amount and endorsed an acknowledgment thereon on 10-10-1979.21. Apart from the above, the evidence of the witnesses also shows that there was a concluded contract. Therefore, even though the draftsman who prepared the agreement might have used a format intended for execution by both vendor and purchaser, the manner in which the parties had proceeded, clearly demonstrated that it was intended to be executed only by the vendor alone.22. Thus we hold that the agreement of sale (Ext. 2) signed only by the vendor was valid and enforceable by the purchaser.61. Since the defendant No. 4 has not signed the sale deed as a vendee, his evidence cannot be discarded. In any case, the weight of evidence of DW3 remains unassailable. Therefore, the testimony of DW3 satisfies the requirements of the conditions required for a valid attestation.62. The plaintiff also asserted that she had not received the consideration in relation to the stated transactions and that the defendants had no means to pay the consideration. It has come on record that the defendants had mortgaged the joint lands several times as they were in need of money. Further, the defendant No. 4 after admitting to have mortgaged the land had said that he used that money to install tubewells and buy tractors. The said fact does not conclusively prove that they did not possess funds as the said loans were obtained to make investments on the joint lands and not on the personal property of the defendant No. 4. Further, the defendant No. 4 had deposed that the sale consideration was paid from the sale proceeds received by selling the land of their mother in the village Ashrafpur. Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non-receipt of the consideration amount.63. A priori, we hold that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds dated 29.06.1990 and 03.07.1990 are, as observed hitherto, unsubstantiated and untenable.64. The plaintiff got her admitted signatures compared with the signatures on the disputed documents by a handwriting expert, Jassy Anand (PW10) who had come to a conclusion that the disputed signatures were a result of copied forgery. On the contrary, the defendants had also got the same document examined by their expert, Arvind Sood (DW7), who had determined the disputed signatures to have been signed by plaintiff herself.65. The trial Court and the first appellate Court had not considered the contrary opinions of the experts and chose to form their opinion based on other evidence that has come on record. In our opinion, the expert evidence produced by the plaintiff in reference to the signature of the plaintiff is of no avail, in view of divergent opinions. The ground that the documents were a result of copied forgery cannot be substantiated only on the basis of the opinion of expert (PW10). Even otherwise, the expert opinions are not a binding piece of evidence and have to be corroborated with other pieces of evidence. Suffice it to say that the plaintiff failed to prove that her signatures on the subject documents are forged.1963 GPA not challenged66. Further, the 1963 GPA is claimed to have been discovered during the enquiries made by the plaintiff subsequent to attaining knowledge of the fraud. However, the said GPA was never challenged by the plaintiff. The reason cited for not challenging the said GPA is that the document being a 30-year old document could not be challenged.67. The trial Court had observed that the plaintiff in her cross examination, gave evasive replies when confronted with the 1963 GPA, which bears her signature. She had also admitted that she was taken to Tehsil office in 1963 after her fathers death. Therefore, it could be safely accepted that the plaintiff had executed the 1963 GPA and further she had knowledge of the sanction of mutation in pursuance of that GPA. Paragraph 45 of the judgment of the trial Court is extracted below:45. Further, another fact which reveals that plaintiff was having knowledge regarding sanctioning of mutation of inheritance, is that, prior to sanctioning of mutation of inheritance of deceased Harbans Singh, she executed power of attorney along with other defendants dated 08.10.1963 Ex. D19 in favour of Gurdial Singh regarding the management of land and she admitted this thing in her cross-examination that after the death of Harbans Singh, she was taken to Tehsil Office and when she was shown that power of attorney which bears her signatures on different points, she gave evasive reply.. The first appellate Court and the High Court had not made any observation in that regard.71. The presumption in favour of a 30-year old document is, therefore, a rebuttable presumption. Nothing prevented the plaintiff to rebut the presumption by leading appropriate evidence in order to disprove the same. Since the plaintiff failed to do so, the said document would be binding on the plaintiff. As a matter of fact, the parties had acted upon the terms of the said document without any demur since 1963 and it was, therefore, not open to resile therefrom at this distance of time. Hence, the trial Court was right in holding the 1963 GPA, to be a genuine document.78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision.79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is ex-facie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of non-existence of fraud. The concurring findings recorded by the trial Court and the first appellate Court - that the documents were executed by the plaintiff - belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001. Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard.80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants.81. Suffice it to observe that since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex-facie barred by limitation.82. As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their bonafides. | 1 | 15,855 | 4,961 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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has come to the conclusion that the disputed documents were executed by Harcharan Kaur (Joginder Kaur [sic]) on dated 29.06.1990, 28.06.1990, 03.07.1990, then in those circumstances, if any fraud etc. has been played upon by the plaintiff, the plaintiff was required to file the suit within the period of three years. So apparently the suit filed by the plaintiff is barred by limitation. Therefore, the said issues stand decided in favour of the defendants and against the plaintiff. (emphasis supplied) 75. The first appellate Court in its judgment confirmed the findings of the trial Court that the suits were barred by limitation. While doing so, the first appellate Court had also proceeded on the wrong premise that the family function was held in December, 2001. Finally, the first appellate Court held that since the 1990 GPA had been proved to have been executed by plaintiff, the question of acquiring knowledge in the family function loses significance. 76. In contrast, the High Court had noted that the factum of the family function and plaintiffs presence thereat was admitted by defendant No. 4. The High Court then went on to reverse the findings of the trial Court and the first appellate Court whilst opining the testimony of Rustam Singh cements the case of the plaintiff and it was apparent that the plaintiff had no reason to suspect her brothers at an earlier point of time and she was not even aware of the acts of the defendants. The said facts came to light only after the plaintiff conducted inquiries. The relevant portion of the High Courts judgment is set out hereunder: ..... … Learned courts below have further erred in holding that the suits are barred by limitation. The plaintiffs case is that she came to know about the fraud being perpetuated by her own step brothers and sister-in-law after she settled in Punjab, subsequent to the retirement of her husband and consequent increased frequency of her interaction with her relatives. Marriage of her paternal uncles son (Tayas son) is admitted by DW 6 Rattan Singh. It is further admitted that the plaintiff was present at the said wedding. Testimony of Rustam Singh cements the case of the plaintiff. ... (emphasis supplied) 77. Before analysing the correctness of the decisions arrived at, let us see the settled legal position as to effect of fraud on limitation as prescribed in Section 17 of the Limitation Act, 1963(for short, the 1963 Act). The said provision reads as under: 17.– Effect of fraud or mistake.- (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,— (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production ....... (emphasis supplied) 78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision. 79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is ex-facie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of non-existence of fraud. The concurring findings recorded by the trial Court and the first appellate Court - that the documents were executed by the plaintiff - belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001. Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard. CONCLUSION 80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants. 81. Suffice it to observe that since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex-facie barred by limitation. 82. As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their bonafides.
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also ought to have independently proved her case of non-receipt of the consideration amount.63. A priori, we hold that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds dated 29.06.1990 and 03.07.1990 are, as observed hitherto, unsubstantiated and untenable.64. The plaintiff got her admitted signatures compared with the signatures on the disputed documents by a handwriting expert, Jassy Anand (PW10) who had come to a conclusion that the disputed signatures were a result of copied forgery. On the contrary, the defendants had also got the same document examined by their expert, Arvind Sood (DW7), who had determined the disputed signatures to have been signed by plaintiff herself.65. The trial Court and the first appellate Court had not considered the contrary opinions of the experts and chose to form their opinion based on other evidence that has come on record. In our opinion, the expert evidence produced by the plaintiff in reference to the signature of the plaintiff is of no avail, in view of divergent opinions. The ground that the documents were a result of copied forgery cannot be substantiated only on the basis of the opinion of expert (PW10). Even otherwise, the expert opinions are not a binding piece of evidence and have to be corroborated with other pieces of evidence. Suffice it to say that the plaintiff failed to prove that her signatures on the subject documents are forged.1963 GPA not challenged66. Further, the 1963 GPA is claimed to have been discovered during the enquiries made by the plaintiff subsequent to attaining knowledge of the fraud. However, the said GPA was never challenged by the plaintiff. The reason cited for not challenging the said GPA is that the document being a 30-year old document could not be challenged.67. The trial Court had observed that the plaintiff in her cross examination, gave evasive replies when confronted with the 1963 GPA, which bears her signature. She had also admitted that she was taken to Tehsil office in 1963 after her fathers death. Therefore, it could be safely accepted that the plaintiff had executed the 1963 GPA and further she had knowledge of the sanction of mutation in pursuance of that GPA. Paragraph 45 of the judgment of the trial Court is extracted below:45. Further, another fact which reveals that plaintiff was having knowledge regarding sanctioning of mutation of inheritance, is that, prior to sanctioning of mutation of inheritance of deceased Harbans Singh, she executed power of attorney along with other defendants dated 08.10.1963 Ex. D19 in favour of Gurdial Singh regarding the management of land and she admitted this thing in her cross-examination that after the death of Harbans Singh, she was taken to Tehsil Office and when she was shown that power of attorney which bears her signatures on different points, she gave evasive reply.. The first appellate Court and the High Court had not made any observation in that regard.71. The presumption in favour of a 30-year old document is, therefore, a rebuttable presumption. Nothing prevented the plaintiff to rebut the presumption by leading appropriate evidence in order to disprove the same. Since the plaintiff failed to do so, the said document would be binding on the plaintiff. As a matter of fact, the parties had acted upon the terms of the said document without any demur since 1963 and it was, therefore, not open to resile therefrom at this distance of time. Hence, the trial Court was right in holding the 1963 GPA, to be a genuine document.78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision.79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is ex-facie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of non-existence of fraud. The concurring findings recorded by the trial Court and the first appellate Court - that the documents were executed by the plaintiff - belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001. Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard.80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants.81. Suffice it to observe that since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex-facie barred by limitation.82. As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their bonafides.
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Lalji Raja & Sons Vs. Firm Hansraj Nathuram | Both those courts have concurrently come to the conclusion that the previous execution proceedings had been prosecuted by the decree-holders with due diligence and with good faith and the same became infructuous in view of the fact that the Morena Court had no jurisdiction to proceed with the execution. The finding that the previous execution proceedings were carried on with due diligence and good faith and that the same became infructuous for want of jurisdiction on the part of the Morena court was not challenged before us. But it was urged on behalf of the judgment-debtors that S. 48 prescribed a bar and not a period of limitation and consequently the decree-holders cannot take the benefit of Section 14 (2) of the Limitation Act. It is necessary to examine the correctness of this contention.22. Section 48 read thus:"(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from -(a) the date of the decree sought to be executed, or,(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.(2) Nothing in this section shall be deemed -(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Indian Limitation Act, 1908".23. Article 183 of the Indian an Limitation Act, 1908 read thus:"Description of application.Period of Limitation.Time from which period begins to run.To enforce a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction or an order of the Supreme Court.Twelve Years.When a present right to enforce the judgment decree or order accrues to some person capable of releasing the right:Provided that when the judgment decree or order has been revived, or some part of the principal money secured thereby or some interest on such money has been paid, or some acknowledgement of the right thereto has been given in writing signed by the person liable to pay such principal or interest or his agent, to the person, entitled thereto or his agent, the twelve years shall be computed from the date of such revivor, payment or acknowledgment or the latest of such revivors payments or acknowledgments, as the case may be."24. At this stage it is also necessary to read Art. 181 of the Limitation Act of 1908. That Article prescribed that an application for which no period of limitation is provided elsewhere in the Schedule to the Limitation Act, 1908 or by S. 48 of the Code, the period of limitation is three years and that period begins to run when the right to apply accrues. Article 182 of that Act provided that for the execution of a decree or order of any Civil Court not provided for by Article 183 or by S. 48 of the Code, the period of limitation is three years or where a certified copy of the decree or order has been registered-six years, The time from which the period was to run is set out in the 3rd column of the Schedule.25. The argument advanced on behalf of the judgment-debtors is that S. 48 is a self-contained Code and the period prescribed therein is a bar and not a period of limitation and hence the decree-holders cannot take the benefit of S. 14 (2). In support of this argument reliance is placed on sub-section 2 (a) of S. 48 of the Code. That sub-section undoubtedly lends some support to the contention of the judgment-debtors. It indicates as to when the period prescribed under S. 48 (1) can be extended. By implication it can be urged that the period prescribed under S. 48 (1) of the Code can only be extended under the circumstances mentioned in that clause and not otherwise. But in assessing the correctness of that contention we have to take into consideration cl. (b) of sub-section (2) of S. 48 of the Code as well as Arts. 181 and 182 of the Limitation Act, 1908.These provisions clearly go to indicate that the period prescribed under S. 48 (1) of the Code is a period of limitation. This conclusion of ours is strengthened by the subsequent history of the legislation. By the Limitation Act 1963, S. 48 of the Code is deleted. Its place has now been taken by Art. 136 of the Limitation Act of 1963.26. At one stage, there was considerable conflict of judicial opinion as to whether S. 48 is controlled by the provisions of the Limitation Act 1908. But the High Courts which had earlier taken the view that S. 48 prescribes a bar and not limitation have now revised their opinion.The opinion amongst the High Courts is now unanimous that S. 48 of the Code is controlled by the provisions of the Limitation Act, 1908-see Kandaswami Pillai v. Kannappa Chetty: AIR 1952 Mad 186 (FB) Durg v. Pancham ILR (l939) All 647 = (AIR 1939 All 403 ) Sitaram v. Chunnilalsa, ILR (19441 Nap 250 = (AIR 1944 Nag 155) Amarendra v. Manindra, AIR 1955 Cal 269 Krishna Chandra v. Paravatamma, AIR 1953 Orissa 13 and Ramgopal v Sidram, AIR 1943 Bom 164 .27. We are of the opinion that the ratio of the above decisions correctly lay down the law. That apart, it would not be appropriate to unsettle the settled position in law. | 1[ds]We are unable to accede to this contention. As mentioned earlier, the judgment-debtors were served with the notice of the suit. They did not choose to appear before the Court. Hence there is no basis for the contention that any principle of natural justice had been contravened. Further as held earlier the judgment question is not a foreignmay be more appropriate to say that the decree in question is not executable in Courts outside this country. The board itself had noticed that this rule of Private International Law is subject to special local legislation. Clause (c) of Section 20 of the Code provided at the relevant time and still provides that subject to the limitations mentioned in the earlier sections of the Code, a suit can be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. There is no dispute in this case that the cause of action for the suit which led up to the decree under execution arose within the jurisdiction of Bankura Court. Hence it must be held that the suit in question was a properly instituted suit. From that it follows that the decree in question is a valid decree though it might not have been executable at one stage in Courts in the former Indianwas admittedly a foreign court for the purpose of any proceedings under the Code. The ratio of that decision is wholly inapplicable to the present case. The question whether a decree is a foreign decree or whether it can be transferred to another court for execution has to be judged by the provisions of the Code.This provision undoubtedly protects the rights acquired and privileges accrued under the law repealed by the amending Act. Therefore the question for decision is whether the non-executability of the decree in the Morena court under the law in force in Madhya Bharat before the extension of the Code can be said to be a right accrued under the repealed law. We do not think that even by straining the language of the provision it can be said that the non-executability of a decree within a particular territory can be considered as a privilege. Therefore the only question that we have to consider is whether it can be considered as a right accrued within the meaning of S. 20 (1) (b) of the Code of Civil Procedure (Amendment) Act, 1951. In the first place, in order to get the benefit of that provision, the non-executability of the decree must be a right and secondly it must be a right that had accrued from the provisions of the repealed law. It is contended on behalf of the judgment-debtors that when the decree was passed, they had a right to resist the execution of the decree in Madhya Bharat in view of the provisions of the Indian Code of Civil Procedure (as adapted) which was in force in the Madhya Bharat at that time and the same is a vested right. It was further urged on their behalf that that right was preserved by Section 20 (1) (b) of the Code of Civil Procedure Amendment Act, 1951.It is difficult to consider the non-executability of the decree in Madhya Bharat as a vested right of the judgment-debtors. The non-executability in question pertains to the jurisdiction of certain courts and not to the rights of the judgment-debtors. Further the relevant provisions of the Civil Procedure Code in force in Madhya Bharat did not confer the right claimed by the judgment-debtors. All that has happened in view of the extension of the Code to the whole of India in l951 is that the decrees which could have been executed only by courts in British India are now made executable in the whole of India. The change made is one relating to procedure and jurisdiction. Even before the Code was extended to Madhya Bharat the decree in question could have been executed either against the person of the judgment-debtors if they had happened to come to British India or against any of their properties situate in British India. The execution of the decree within the State of Madhya Bharat was not permissible because the arm of the Code did not reach Madhya Bharat. It was the invalidity of the order transferring the decree to the Morena court that stood in the way of the decree-holders in executing their decree in that court on the earlier occasion and not because of any vested rights of the judgment-debtors. Even if the judgment-debtors had not objected to the execution of the decree; the same could not have been executed by the court at Morena on the previous occasion as that court was not properly seized of the execution proceedings. By the extension of the Code to Madhya Bharat, want of jurisdiction on the part of the Morena court was remedied and that court is now made competent to execute thethe executing court as well as the High Court have taken the view that on the facts of this case, the limitation prescribed in S. 48 of the Code is extended under S. 14 (2) of the Limitation Act, 1908. Both those courts have concurrently come to the conclusion that the previous execution proceedings had been prosecuted by the decree-holders with due diligence and with good faith and the same became infructuous in view of the fact that the Morena Court had no jurisdiction to proceed with the execution. The finding that the previous execution proceedings were carried on with due diligence and good faith and that the same became infructuous for want of jurisdiction on the part of the Morena court was not challenged before us. But it was urged on behalf of the judgment-debtors that S. 48 prescribed a bar and not a period of limitation and consequently the decree-holders cannot take the benefit of Section 14 (2) of the Limitation Act. It is necessary to examine the correctness of thissub-section undoubtedly lends some support to the contention of the judgment-debtors. It indicates as to when the period prescribed under S. 48 (1) can be extended. By implication it can be urged that the period prescribed under S. 48 (1) of the Code can only be extended under the circumstances mentioned in that clause and not otherwise. But in assessing the correctness of that contention we have to take into consideration cl. (b) of sub-section (2) of S. 48 of the Code as well as Arts. 181 and 182 of the Limitation Act, 1908.These provisions clearly go to indicate that the period prescribed under S. 48 (1) of the Code is a period of limitation. This conclusion of ours is strengthened by the subsequent history of the legislation. By the Limitation Act 1963, S. 48 of the Code is deleted. Its place has now been taken by Art. 136 of the Limitation Act of 1963.We are of the opinion that the ratio of the above decisions correctly lay down the law. That apart, it would not be appropriate to unsettle the settled position in law. | 1 | 5,142 | 1,271 | ### Instruction:
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Both those courts have concurrently come to the conclusion that the previous execution proceedings had been prosecuted by the decree-holders with due diligence and with good faith and the same became infructuous in view of the fact that the Morena Court had no jurisdiction to proceed with the execution. The finding that the previous execution proceedings were carried on with due diligence and good faith and that the same became infructuous for want of jurisdiction on the part of the Morena court was not challenged before us. But it was urged on behalf of the judgment-debtors that S. 48 prescribed a bar and not a period of limitation and consequently the decree-holders cannot take the benefit of Section 14 (2) of the Limitation Act. It is necessary to examine the correctness of this contention.22. Section 48 read thus:"(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from -(a) the date of the decree sought to be executed, or,(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.(2) Nothing in this section shall be deemed -(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Indian Limitation Act, 1908".23. Article 183 of the Indian an Limitation Act, 1908 read thus:"Description of application.Period of Limitation.Time from which period begins to run.To enforce a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction or an order of the Supreme Court.Twelve Years.When a present right to enforce the judgment decree or order accrues to some person capable of releasing the right:Provided that when the judgment decree or order has been revived, or some part of the principal money secured thereby or some interest on such money has been paid, or some acknowledgement of the right thereto has been given in writing signed by the person liable to pay such principal or interest or his agent, to the person, entitled thereto or his agent, the twelve years shall be computed from the date of such revivor, payment or acknowledgment or the latest of such revivors payments or acknowledgments, as the case may be."24. At this stage it is also necessary to read Art. 181 of the Limitation Act of 1908. That Article prescribed that an application for which no period of limitation is provided elsewhere in the Schedule to the Limitation Act, 1908 or by S. 48 of the Code, the period of limitation is three years and that period begins to run when the right to apply accrues. Article 182 of that Act provided that for the execution of a decree or order of any Civil Court not provided for by Article 183 or by S. 48 of the Code, the period of limitation is three years or where a certified copy of the decree or order has been registered-six years, The time from which the period was to run is set out in the 3rd column of the Schedule.25. The argument advanced on behalf of the judgment-debtors is that S. 48 is a self-contained Code and the period prescribed therein is a bar and not a period of limitation and hence the decree-holders cannot take the benefit of S. 14 (2). In support of this argument reliance is placed on sub-section 2 (a) of S. 48 of the Code. That sub-section undoubtedly lends some support to the contention of the judgment-debtors. It indicates as to when the period prescribed under S. 48 (1) can be extended. By implication it can be urged that the period prescribed under S. 48 (1) of the Code can only be extended under the circumstances mentioned in that clause and not otherwise. But in assessing the correctness of that contention we have to take into consideration cl. (b) of sub-section (2) of S. 48 of the Code as well as Arts. 181 and 182 of the Limitation Act, 1908.These provisions clearly go to indicate that the period prescribed under S. 48 (1) of the Code is a period of limitation. This conclusion of ours is strengthened by the subsequent history of the legislation. By the Limitation Act 1963, S. 48 of the Code is deleted. Its place has now been taken by Art. 136 of the Limitation Act of 1963.26. At one stage, there was considerable conflict of judicial opinion as to whether S. 48 is controlled by the provisions of the Limitation Act 1908. But the High Courts which had earlier taken the view that S. 48 prescribes a bar and not limitation have now revised their opinion.The opinion amongst the High Courts is now unanimous that S. 48 of the Code is controlled by the provisions of the Limitation Act, 1908-see Kandaswami Pillai v. Kannappa Chetty: AIR 1952 Mad 186 (FB) Durg v. Pancham ILR (l939) All 647 = (AIR 1939 All 403 ) Sitaram v. Chunnilalsa, ILR (19441 Nap 250 = (AIR 1944 Nag 155) Amarendra v. Manindra, AIR 1955 Cal 269 Krishna Chandra v. Paravatamma, AIR 1953 Orissa 13 and Ramgopal v Sidram, AIR 1943 Bom 164 .27. We are of the opinion that the ratio of the above decisions correctly lay down the law. That apart, it would not be appropriate to unsettle the settled position in law.
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held that the suit in question was a properly instituted suit. From that it follows that the decree in question is a valid decree though it might not have been executable at one stage in Courts in the former Indianwas admittedly a foreign court for the purpose of any proceedings under the Code. The ratio of that decision is wholly inapplicable to the present case. The question whether a decree is a foreign decree or whether it can be transferred to another court for execution has to be judged by the provisions of the Code.This provision undoubtedly protects the rights acquired and privileges accrued under the law repealed by the amending Act. Therefore the question for decision is whether the non-executability of the decree in the Morena court under the law in force in Madhya Bharat before the extension of the Code can be said to be a right accrued under the repealed law. We do not think that even by straining the language of the provision it can be said that the non-executability of a decree within a particular territory can be considered as a privilege. Therefore the only question that we have to consider is whether it can be considered as a right accrued within the meaning of S. 20 (1) (b) of the Code of Civil Procedure (Amendment) Act, 1951. In the first place, in order to get the benefit of that provision, the non-executability of the decree must be a right and secondly it must be a right that had accrued from the provisions of the repealed law. It is contended on behalf of the judgment-debtors that when the decree was passed, they had a right to resist the execution of the decree in Madhya Bharat in view of the provisions of the Indian Code of Civil Procedure (as adapted) which was in force in the Madhya Bharat at that time and the same is a vested right. It was further urged on their behalf that that right was preserved by Section 20 (1) (b) of the Code of Civil Procedure Amendment Act, 1951.It is difficult to consider the non-executability of the decree in Madhya Bharat as a vested right of the judgment-debtors. The non-executability in question pertains to the jurisdiction of certain courts and not to the rights of the judgment-debtors. Further the relevant provisions of the Civil Procedure Code in force in Madhya Bharat did not confer the right claimed by the judgment-debtors. All that has happened in view of the extension of the Code to the whole of India in l951 is that the decrees which could have been executed only by courts in British India are now made executable in the whole of India. The change made is one relating to procedure and jurisdiction. Even before the Code was extended to Madhya Bharat the decree in question could have been executed either against the person of the judgment-debtors if they had happened to come to British India or against any of their properties situate in British India. The execution of the decree within the State of Madhya Bharat was not permissible because the arm of the Code did not reach Madhya Bharat. It was the invalidity of the order transferring the decree to the Morena court that stood in the way of the decree-holders in executing their decree in that court on the earlier occasion and not because of any vested rights of the judgment-debtors. Even if the judgment-debtors had not objected to the execution of the decree; the same could not have been executed by the court at Morena on the previous occasion as that court was not properly seized of the execution proceedings. By the extension of the Code to Madhya Bharat, want of jurisdiction on the part of the Morena court was remedied and that court is now made competent to execute thethe executing court as well as the High Court have taken the view that on the facts of this case, the limitation prescribed in S. 48 of the Code is extended under S. 14 (2) of the Limitation Act, 1908. Both those courts have concurrently come to the conclusion that the previous execution proceedings had been prosecuted by the decree-holders with due diligence and with good faith and the same became infructuous in view of the fact that the Morena Court had no jurisdiction to proceed with the execution. The finding that the previous execution proceedings were carried on with due diligence and good faith and that the same became infructuous for want of jurisdiction on the part of the Morena court was not challenged before us. But it was urged on behalf of the judgment-debtors that S. 48 prescribed a bar and not a period of limitation and consequently the decree-holders cannot take the benefit of Section 14 (2) of the Limitation Act. It is necessary to examine the correctness of thissub-section undoubtedly lends some support to the contention of the judgment-debtors. It indicates as to when the period prescribed under S. 48 (1) can be extended. By implication it can be urged that the period prescribed under S. 48 (1) of the Code can only be extended under the circumstances mentioned in that clause and not otherwise. But in assessing the correctness of that contention we have to take into consideration cl. (b) of sub-section (2) of S. 48 of the Code as well as Arts. 181 and 182 of the Limitation Act, 1908.These provisions clearly go to indicate that the period prescribed under S. 48 (1) of the Code is a period of limitation. This conclusion of ours is strengthened by the subsequent history of the legislation. By the Limitation Act 1963, S. 48 of the Code is deleted. Its place has now been taken by Art. 136 of the Limitation Act of 1963.We are of the opinion that the ratio of the above decisions correctly lay down the law. That apart, it would not be appropriate to unsettle the settled position in law.
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Jayam & Co Vs. Assistant Commissioner & Another | manner as to withdraw the benefit that had been given earlier resulting in higher burdens so far as the assessee is concerned, without any reason. Retrospective withdrawal of the benefit of set-off only for a particular period should be justified on some tangible and rational ground, when challenged on the ground of unconstitutionality. Unfortunately, the State could not succeed in doing so. The view of the High Court that the impugned amendment of Rule 41-E was of clarificatory nature to remove the doubts in interpretation cannot be upheld. In fact, the High Court did not elaborate as to how the impugned legislation is merely clarificatory. In that view of the matter, although we recognise the fact that the State has enormous powers in the matter of legislation, both prospectively and retrospectively, and can evolve its own policy, we do not think that in the present cases any material has been placed before the Court as to why the amendments were confined only to a period of eight years and not either before or subsequently and, therefore, we are of the view that the impugned provision, namely, Section 26 deserves to be quashed by striking down the words "not being waste goods or scrap goods or by-products" occurring in the said Section 26 of Maharashtra Act 9 of 1989 and the authorities concerned shall rework assessments as if that law had not been passed and give appropriate benefits according to law to the parties concerned." 17. The entire gamut of retrospective operation of fiscal statues was revisited by this Court in a Constitution Bench judgment in Commissioner of Income Tax (Central) - I, New Delhi v. Vatika Township Private Limited, (2015) 1 SCC 1 in the following manner: "33. A Constitution Bench of this Court in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas [AIR 1968 SC 1336 : (1968) 3 SCR 623 ] , while considering the nature of amendment to Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act as amended by Gujarat Act 18 of 1965, observed as follows: (AIR p. 1339, para 8)"8. ... The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from Section 115 of the Code of Civil Procedure, and the legislature has by the amending Act not attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act."34. It would also be pertinent to mention that assessment creates a vested right and an assessee cannot be subjected to reassessment unless a provision to that effect inserted by amendment is either expressly or by necessary implication retrospective. (See CED v. M.A. Merchant [1989 Supp (1) SCC 499 : 1989 SCC (Tax) 404] .)35. We would also like to reproduce hereunder the following observations made by this Court in Govind Das v. ITO [(1976) 1 SCC 906 : 1976 SCC (Tax) 133] , while holding Section 171(6) of the Income Tax Act to be prospective and inapplicable for any assessment year prior to 1-4-1962, the date on which the Income Tax Act came into force: (SCC p. 914, para 11)"11. Now it is a well-settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule as stated by Halsbury in Vol. 36 of the Laws of England (3rd Edn.) and reiterated in several decisions of this Court as well as English courts is that`all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."(emphasis supplied) 18. When we keep in mind the aforesaid parameters laid down by this Court in testing validity of retrospective operation of fiscal laws, we find that the amendment in-question fails to meet these tests. The High Court has primarily gone by the fact that there was no unforseen or unforeseeable financial burden imposed for the past period. That is not correct. Moreover, as can be seen, sub-section (20) of Section 19 is altogether new provision introduced for determining the input tax in specified situation, i.e., where goods are sold at a lesser price than the purchase price of goods. The manner of calculation of the ITC was entirely different before this amendment. In the example, which has been given by us in the earlier part of the judgment, dealer was entitled to ITC of Rs. 10/- on re-sale, which was paid by the dealer as VAT while purchasing the goods from the vendors. However, in view of Section 19(20) inserted by way of amendment, he would now be entitled to ITC of Rs. 9.50. This is clearly a provision which is made for the first time to the detriment of the dealers. Such a provision, therefore, cannot have retrospective effect, more so, when vested right had accrued in favour of these dealers in respect of purchases and sales made between January 01, 2007 to August 19, 2010. Thus, while upholding the vires of sub-section (20) of Section 19, we set aside and strike down Amendment Act 22 of 2010 whereby this amendment was given retrospective effect from January 01, 2007. | 1[ds]12. It is a trite law that whenever concession is given by statute or notification etc. the conditions thereof are to be strictly complied with in order to avail such concession. Thus, it is not the right of the dealers to get the benefit of ITC but its a concession granted by virtue of Section 19. As a fortiorari, conditions specified in Section 10 must be fulfilled. In that hue, we find that Section 10 makes original tax invoice relevant for the purpose of claiming tax. Therefore, under the scheme of the VAT Act, it is not permissible for the dealers to argue that the price as indicated in the tax invoice should not have been taken into consideration but the net purchase price after discount is to be the basis. If we were dealing with any other aspect do hors the issue of ITC as per the Section 19 of the VAT Act, possibly the arguments of Mr. Bagaria would have assumed some relevance. But, keeping in view the scope of the issue, such a plea is not admissible having regard to the plain language of sections of the VAT Act, read along with other provisions of the said Act as referred to above.13. For the same reasons given above, challenge to constitutional validity of(20) of Section 19 of VAT Act has to fail. When a concession is given by a statute, the Legislature has power to make the provision stating the form and manner in which such concession is to be allowed.(20) seeks to achieve that. There was no right, inherent or otherwise, vested with dealers to claim the benefit of ITC but for Section 19 of the VAT Act. That apart, we find that there were valid and cogent reasons for inserting Section 19(20). Main purport was to protect the Revenue against clandestine transactions resulting in evasion of tax.At the same time, this Court has also held that retrospective legislation would be admissible in cases of validation laws, i.e., where the laws as initially passed was held to be inoperative by the court and when there is a new provision inserted, it should normally be prospective. We may refer to the judgment of this Court in Tata Motors Ltd. v. State of Maharashtra and others, (2004) 5 SCC 783. In that case, the appellantassessee company, manufactured motor vehicle chassis and spare parts. It procured steel in primary form covered by Entry 6 of Schedule B to the Bombay Sales Tax Act, 1959 for use in the manufacturing process which resulted also in iron and steel crap which was covered by the said entry. Therefore, in Assessment Yearthe appellant therein claimedof a certain amount in terms of Rulefor the quantum of iron and steel purchased which was converted into iron and steel scrap. The claim was allowed. Subsequently, Maharashtra Act 9 of 1989 was enacted and by Sections 26 and 27, the benefit of Rulewas denied altogether for the period88 where the manufactured goods falling under Schedule B were in the nature of waste goods/scrapThe validity of such retrospective amendment to Rulewas unsuccessfully challenged before the High Court. The High Court took the view that the impugned amendment of Rulewas clarificatory to remove the doubts in interpretation. However, by the Bombay Sales Tax (Amendment) Rules, 1992 Rulewas amended. That amendment removed the exclusionary clause of goods manufactured out of waste or scrap goods or products and restored the position as it stood prior to 1981. The appellants appeal and another connected appeal were heardee contended that retrospective operation of a provision depriving the assessee of the vested statutory right and covering a long period (eight years in that case) imposed a prima facie unreasonable restriction and was, therefore, unconstitutional. More so, when the original provision was subsequently reintroduced deleting the amendments and there was no material to justify the special treatment given for the said eight years. The respondent State could not meet the said contention. The assessee company further contended that since the CST Act had not been extended to Dadra and Nagar Haveli, where the assessees branch office was located, the requirement under Rulefor registration of the assessee under the CST Act in that place was impossible of performance and should, therefore, be ignored.The entire gamut of retrospective operation of fiscal statues was revisited by this Court in a Constitution Bench judgment in Commissioner of Income Tax (Central)I, New Delhi v. Vatika Township Private Limited, (2015) 1 SCC 1 in the followingA Constitution Bench of this Court in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas [AIR 1968 SC 1336 : (1968) 3 SCR 623 ] , while considering the nature of amendment to Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act as amended by Gujarat Act 18 of 1965, observed as follows: (AIR p. 1339, para 8)"8. ... The amending clause does not seek to explain anylegislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from Section 115 of the Code of Civil Procedure, and the legislature has by the amending Act not attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act."34. It would also be pertinent to mention that assessment creates a vested right and an assessee cannot be subjected to reassessment unless a provision to that effect inserted by amendment is either expressly or by necessary implication retrospective. (See CED v. M.A. Merchant [1989 Supp (1) SCC 499 : 1989 SCC (Tax) 404] .)35. We would also like to reproduce hereunder the following observations made by this Court in Govind Das v. ITO [(1976) 1 SCC 906 : 1976 SCC (Tax) 133] , while holding Section 171(6) of the Income Tax Act to be prospective and inapplicable for any assessment year prior tothe date on which the Income Tax Act came into force: (SCC p. 914, para 11)"11. Now it is arule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule as stated by Halsbury in Vol. 36 of the Laws of England (3rd Edn.) and reiterated in several decisions of this Court as well as English courts is that`all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."(emphasisWhen we keep in mind the aforesaid parameters laid down by this Court in testing validity of retrospective operation of fiscal laws, we find that the amendmentfails to meet these tests. The High Court has primarily gone by the fact that there was no unforseen or unforeseeable financial burden imposed for the past period. That is not correct. Moreover, as can be seen,(20) of Section 19 is altogether new provision introduced for determining the input tax in specified situation, i.e., where goods are sold at a lesser price than the purchase price of goods. The manner of calculation of the ITC was entirely different before this amendment. In the example, which has been given by us in the earlier part of the judgment, dealer was entitled to ITC of Rs. 10/, which was paid by the dealer as VAT while purchasing the goods from the vendors. However, in view of Section 19(20) inserted by way of amendment, he would now be entitled to ITC of Rs. 9.50. This is clearly a provision which is made for the first time to the detriment of the dealers. Such a provision, therefore, cannot have retrospective effect, more so, when vested right had accrued in favour of these dealers in respect of purchases and sales made between January 01, 2007 to August 19, 2010. Thus, while upholding the vires of(20) of Section 19, we set aside and strike down Amendment Act 22 of 2010 whereby this amendment was given retrospective effect from January 01, 2007. | 1 | 7,141 | 1,635 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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manner as to withdraw the benefit that had been given earlier resulting in higher burdens so far as the assessee is concerned, without any reason. Retrospective withdrawal of the benefit of set-off only for a particular period should be justified on some tangible and rational ground, when challenged on the ground of unconstitutionality. Unfortunately, the State could not succeed in doing so. The view of the High Court that the impugned amendment of Rule 41-E was of clarificatory nature to remove the doubts in interpretation cannot be upheld. In fact, the High Court did not elaborate as to how the impugned legislation is merely clarificatory. In that view of the matter, although we recognise the fact that the State has enormous powers in the matter of legislation, both prospectively and retrospectively, and can evolve its own policy, we do not think that in the present cases any material has been placed before the Court as to why the amendments were confined only to a period of eight years and not either before or subsequently and, therefore, we are of the view that the impugned provision, namely, Section 26 deserves to be quashed by striking down the words "not being waste goods or scrap goods or by-products" occurring in the said Section 26 of Maharashtra Act 9 of 1989 and the authorities concerned shall rework assessments as if that law had not been passed and give appropriate benefits according to law to the parties concerned." 17. The entire gamut of retrospective operation of fiscal statues was revisited by this Court in a Constitution Bench judgment in Commissioner of Income Tax (Central) - I, New Delhi v. Vatika Township Private Limited, (2015) 1 SCC 1 in the following manner: "33. A Constitution Bench of this Court in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas [AIR 1968 SC 1336 : (1968) 3 SCR 623 ] , while considering the nature of amendment to Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act as amended by Gujarat Act 18 of 1965, observed as follows: (AIR p. 1339, para 8)"8. ... The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from Section 115 of the Code of Civil Procedure, and the legislature has by the amending Act not attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act."34. It would also be pertinent to mention that assessment creates a vested right and an assessee cannot be subjected to reassessment unless a provision to that effect inserted by amendment is either expressly or by necessary implication retrospective. (See CED v. M.A. Merchant [1989 Supp (1) SCC 499 : 1989 SCC (Tax) 404] .)35. We would also like to reproduce hereunder the following observations made by this Court in Govind Das v. ITO [(1976) 1 SCC 906 : 1976 SCC (Tax) 133] , while holding Section 171(6) of the Income Tax Act to be prospective and inapplicable for any assessment year prior to 1-4-1962, the date on which the Income Tax Act came into force: (SCC p. 914, para 11)"11. Now it is a well-settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule as stated by Halsbury in Vol. 36 of the Laws of England (3rd Edn.) and reiterated in several decisions of this Court as well as English courts is that`all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."(emphasis supplied) 18. When we keep in mind the aforesaid parameters laid down by this Court in testing validity of retrospective operation of fiscal laws, we find that the amendment in-question fails to meet these tests. The High Court has primarily gone by the fact that there was no unforseen or unforeseeable financial burden imposed for the past period. That is not correct. Moreover, as can be seen, sub-section (20) of Section 19 is altogether new provision introduced for determining the input tax in specified situation, i.e., where goods are sold at a lesser price than the purchase price of goods. The manner of calculation of the ITC was entirely different before this amendment. In the example, which has been given by us in the earlier part of the judgment, dealer was entitled to ITC of Rs. 10/- on re-sale, which was paid by the dealer as VAT while purchasing the goods from the vendors. However, in view of Section 19(20) inserted by way of amendment, he would now be entitled to ITC of Rs. 9.50. This is clearly a provision which is made for the first time to the detriment of the dealers. Such a provision, therefore, cannot have retrospective effect, more so, when vested right had accrued in favour of these dealers in respect of purchases and sales made between January 01, 2007 to August 19, 2010. Thus, while upholding the vires of sub-section (20) of Section 19, we set aside and strike down Amendment Act 22 of 2010 whereby this amendment was given retrospective effect from January 01, 2007.
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therein claimedof a certain amount in terms of Rulefor the quantum of iron and steel purchased which was converted into iron and steel scrap. The claim was allowed. Subsequently, Maharashtra Act 9 of 1989 was enacted and by Sections 26 and 27, the benefit of Rulewas denied altogether for the period88 where the manufactured goods falling under Schedule B were in the nature of waste goods/scrapThe validity of such retrospective amendment to Rulewas unsuccessfully challenged before the High Court. The High Court took the view that the impugned amendment of Rulewas clarificatory to remove the doubts in interpretation. However, by the Bombay Sales Tax (Amendment) Rules, 1992 Rulewas amended. That amendment removed the exclusionary clause of goods manufactured out of waste or scrap goods or products and restored the position as it stood prior to 1981. The appellants appeal and another connected appeal were heardee contended that retrospective operation of a provision depriving the assessee of the vested statutory right and covering a long period (eight years in that case) imposed a prima facie unreasonable restriction and was, therefore, unconstitutional. More so, when the original provision was subsequently reintroduced deleting the amendments and there was no material to justify the special treatment given for the said eight years. The respondent State could not meet the said contention. The assessee company further contended that since the CST Act had not been extended to Dadra and Nagar Haveli, where the assessees branch office was located, the requirement under Rulefor registration of the assessee under the CST Act in that place was impossible of performance and should, therefore, be ignored.The entire gamut of retrospective operation of fiscal statues was revisited by this Court in a Constitution Bench judgment in Commissioner of Income Tax (Central)I, New Delhi v. Vatika Township Private Limited, (2015) 1 SCC 1 in the followingA Constitution Bench of this Court in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas [AIR 1968 SC 1336 : (1968) 3 SCR 623 ] , while considering the nature of amendment to Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act as amended by Gujarat Act 18 of 1965, observed as follows: (AIR p. 1339, para 8)"8. ... The amending clause does not seek to explain anylegislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from Section 115 of the Code of Civil Procedure, and the legislature has by the amending Act not attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act."34. It would also be pertinent to mention that assessment creates a vested right and an assessee cannot be subjected to reassessment unless a provision to that effect inserted by amendment is either expressly or by necessary implication retrospective. (See CED v. M.A. Merchant [1989 Supp (1) SCC 499 : 1989 SCC (Tax) 404] .)35. We would also like to reproduce hereunder the following observations made by this Court in Govind Das v. ITO [(1976) 1 SCC 906 : 1976 SCC (Tax) 133] , while holding Section 171(6) of the Income Tax Act to be prospective and inapplicable for any assessment year prior tothe date on which the Income Tax Act came into force: (SCC p. 914, para 11)"11. Now it is arule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule as stated by Halsbury in Vol. 36 of the Laws of England (3rd Edn.) and reiterated in several decisions of this Court as well as English courts is that`all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."(emphasisWhen we keep in mind the aforesaid parameters laid down by this Court in testing validity of retrospective operation of fiscal laws, we find that the amendmentfails to meet these tests. The High Court has primarily gone by the fact that there was no unforseen or unforeseeable financial burden imposed for the past period. That is not correct. Moreover, as can be seen,(20) of Section 19 is altogether new provision introduced for determining the input tax in specified situation, i.e., where goods are sold at a lesser price than the purchase price of goods. The manner of calculation of the ITC was entirely different before this amendment. In the example, which has been given by us in the earlier part of the judgment, dealer was entitled to ITC of Rs. 10/, which was paid by the dealer as VAT while purchasing the goods from the vendors. However, in view of Section 19(20) inserted by way of amendment, he would now be entitled to ITC of Rs. 9.50. This is clearly a provision which is made for the first time to the detriment of the dealers. Such a provision, therefore, cannot have retrospective effect, more so, when vested right had accrued in favour of these dealers in respect of purchases and sales made between January 01, 2007 to August 19, 2010. Thus, while upholding the vires of(20) of Section 19, we set aside and strike down Amendment Act 22 of 2010 whereby this amendment was given retrospective effect from January 01, 2007.
|
Hindustan Coca-Cola Beverage Pvt. Ltd Vs. Sangli Miraj & Kupwad Municipal Corporation & Others | of octroi in the penultimate paragraph of the Report at p. 234, the Court observed that the Burmah Shell was liable to pay octroi tax on goods brought into local area (a) to be consumed by itself or sold by it to consumers direct and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it. The Company was, however, not liable to octroi in respect of goods which it brought into the local area and which were re-exported. But to enable the Company to save itself from tax in that case it had to follow the procedure laid down by rules for refund of taxes.16. The aforesaid authoritative pronouncement of the Constitution Bench of this Court, therefore, sets at rest the controversy in the present case. If it is the case of the writ petitioner that during the relevant period from 1980 to 1987 it brought within the municipal limits of the four respondent-Municipalities beverages packed in bottles and the bottles were not sold within the municipal limits and after the beverages were taken out of these bottles, these very bottles were returned to the petitioner and were taken back to Bareilly, then for claiming the refund of the octroi paid on the weight of these bottles during the relevant period when the consignments entered the municipal limits from time to time, the writ petitioner had to follow the procedure laid down by the Municipality concerned under its rules for refund of taxes and had to comply with the statutory gamut of these rules. It had also to show that the burden of disputed octroi duty was borne by it and was not passed on to consumers of beverages contained in these bottles. In other words, it would not be guilty of unjust enrichment if refund was granted. If the refund claim on furnishing the relevant proofs was not ultimately granted, the remedy of appeal provided under the rules had to be followed.” 20. On a minute and detailed perusal of the judgment of the Constitution Bench in the case of Burmah Shell Oil (supra), and the above noted inference drawn in the case of Acqueous Victuals (supra), we do not agree with the said submission of the appellant. We respectfully agree with the above noted inference drawn and are of the considered opinion that this Court in Acqueous Victuals (supra) has correctly appreciated the law laid down by the Constitution Bench in Burmah Shell Oil (supra).21. Though it was vehemently argued that the cost of the bottles and crates is amortized and included in the retail sale price of the aerated beverage but no facts were placed before the High Court in that regard. Moreover, even in case the same were placed, the same being disputed question of fact could not have been gone into by the High Court exercising the jurisdiction under Article 226 of the Constitution of India.22. In the present case, the definition of “octroi” is contained in Section 2(42) of the BPMC Act. Relevant entry in respect of aerated water in the octroi schedule under the said Rules is at serial no.11 (D). Relevant entry as regards bottles is at serial no.52. Relevant entry as regards barrel crate and individual crate, is at serial No.53E. The said Rules contain detailed provisions under which an importer can make an application for refund.23. Accordingly, in our opinion, as also laid down by this Court in Acqueous Victuals (supra), in case the appellant- company is sending out the same bottles for recycling and if the bottles and crates are not sold, used, or consumed in the Municipal limits of the respondent-Corporation, that is to say, if they have not finally rested in the Municipal limits of the respondent-Corporation in which they are imported, the appellant-company can always make an application for refund under the said Rules. The appellant-company will have to produce evidence on the points detailed in the Acqueous Victuals (supra) which we have quoted hereinabove. As submitted by the appellant, in case, the cost of the bottles and crates is amortized and included in the retail sale price of the aerated beverage, the evidence can also be placed in that regard, in order to claim refund on any such amount. Besides, it was also pointed out that bottles in which beverages are brought are recycled and used bottles and therefore levy of octroi cannot be at the same rate as that of the new bottles. These are also disputes on the facts, which would require production of evidence. On the appellant- company making an application for refund, the concerned authority will consider it in its proper perspective and if a case is made out shall grant refund.24. Needless to say, in case, the appellant is aggrieved by the valuation of the bottles and crates on the basis of which the impugned bill is issued they are at the liberty to file objections before the appropriate authority, and the appropriate authority will adjudicate the same in accordance with the law, as against which if still aggrieved, further remedy as available could be resorted to.25. At this stage it is pertinent to mention that during the hearing, the appellant has expressed its concern about the mechanism by which the said levy could be computed and collected as according to them the present procedure is very cumbersome and unworkable at both the ends, and moreover, the same would result into incurring of huge managerial time and administrative cost. After the present judgment was reserved for pronouncement, the appellant has also given proposals to the respondent corporation for devising a suitable and convenient mechanism. The said request on the part of the appellant requires consideration. Accordingly, the responded corporation shall consider the said proposal in accordance with law and even otherwise on their part devise a suitable, convenient and workable mechanism for levy and collection of octroi. | 0[ds]If empty bottles are taken out of Municipal limits, they cannot be said to have been consumed or destroyed within the Municipal limits. The question which needs investigation is whether out of the total consignment of bottled beverages imported within the Municipal limits, the entire consignments of the very bottles after getting emptied got re-exported or whether some of the said bottles forming part of the original consignments got destroyed by way of breakage, etc. or were never returned by the consumers concerned and only rest of the imported bottles were re- exported by enabling the consumers and retailers or wholesalers to get refund of the price of the bottles paid by way of advance security from the petitioner-Company on return of these empty bottles for recycling. It is axiomatic that if the bottles in which beverages were brought within the Municipal limits for sale to consumers had themselves got destroyed by breakage, etc. or were not returned by consumers, they could be said to be consumed within the Municipal limits and, hence, there would be no occasion for their export at any time thereafter. In the said circumstance the intention with respect to the fact that whether or not, the said goods were brought for consumption and usage will become clear only at the subsequent stage i.e. when the bottles are re-exported.In the view that it had taken, this Court held that if the petitioner-Company satisfied the authorities concerned that the bottles containing the original consignments after getting emptied within the Municipal limits were actually taken out of the Municipal limits for recycling, then it would be entitled to claim proportionate refund of the octroi duty assessed on the weight of such empty bottles only subject to the burden of such amount of duty not being shown to have been passed on to consumers of beverages or to anyone else, i.e. there is no unjust enrichment.17. Setting aside the High Courts order to the above extent, this Court permitted the petitioner-Company to lodge its claim for refund by producing evidence on the followingNature of the consignments concerned with their dates and the number of bottles packed with beverages brought within the municipal limits with their weight;(b) Proof regarding the fact that these bottles were not sold within the municipal limits to wholesalers, retailers or to any other person;(c) Number of bottles covered by the consignments concerned which were subsequently taken out as empty bottles beyond the municipal limits for recycling and weight of such empty bottles;(d) Whether the bottles which are actually found to have been taken out of the municipal limits were the very same bottles containing beverages brought within the municipal limits by way of relevant consignments;(e) Whether the value of such bottles and amount of octroi duty on their weight was passed on to the consumers orIn our considered opinion the present case is squarely covered by the above said decision of this Court in the case of Acqueous Victuals (supra), and the said decision was passed on the similar facts as of the present case, the only difference being that in the case of Acqueous Victuals (supra) octroi was computed and levied on the basis of the weight of the bottles and crates, whereas in the present case, the impugned bill seeks to levy octroi on the basis of value of the bottles and value of the crates. It was suggested by the learned senior counsel appearing for the appellant that due to the said difference the judgment in the case of Acqueous Victuals (supra) will not be applicable to the present case. In our opinion the said difference of the mode of computation of the octroi will not affect the applicability of the ratio of the said decision to the present case and the same applies to the present case on all fours.19. It was also suggested by the learned senior counsel appearing for the appellant that the decision in the case of Acqueous Victuals (supra) cannot be said to be the correct law as the said decision did not correctly appreciate the law laid down by the Constitution Bench of this Court in the case of Burmah Shell Oil (supra). In order to appreciate the said submission it would be appropriate to extract the relevant portion of the judgment in the case of Acqueous Victuals (supra) wherein this Court has elaborately considered the law laid down by the Constitution Bench in the case of Burmah Shell OilIn view of the aforesaid decision, it becomes obvious that the wordis held to be a synonym with the wordmeaning thereby the article concerned must finally rest within the municipal limits. In the light of the aforesaid judgment of the Constitution Bench of this Court, therefore, it is obvious that before a municipality can impose octroi duty on any commodity, it has to be shown that the commodity concerned was brought within the municipal limits for consumption, that is, for being totally used up so that it ceases to exist within the municipal limits themselves or it was to be used for an indefinite period within the municipal limits so that it ultimately rests within the municipal limits and does not go out subsequently, or the commodity concerned must be shown to have been brought within the municipal limits for the purpose of sale within the said limits. Having thus laid down the aforesaid legal position concerning the imposition of octroi in the penultimate paragraph of the Report at p. 234, the Court observed that the Burmah Shell was liable to pay octroi tax on goods brought into local area (a) to be consumed by itself or sold by it to consumers direct and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it. The Company was, however, not liable to octroi in respect of goods which it brought into the local area and which were re-exported. But to enable the Company to save itself from tax in that case it had to follow the procedure laid down by rules for refund of taxes.16. The aforesaid authoritative pronouncement of the Constitution Bench of this Court, therefore, sets at rest the controversy in the present case. If it is the case of the writ petitioner that during the relevant period from 1980 to 1987 it brought within the municipal limits of the four respondent-Municipalities beverages packed in bottles and the bottles were not sold within the municipal limits and after the beverages were taken out of these bottles, these very bottles were returned to the petitioner and were taken back to Bareilly, then for claiming the refund of the octroi paid on the weight of these bottles during the relevant period when the consignments entered the municipal limits from time to time, the writ petitioner had to follow the procedure laid down by the Municipality concerned under its rules for refund of taxes and had to comply with the statutory gamut of these rules. It had also to show that the burden of disputed octroi duty was borne by it and was not passed on to consumers of beverages contained in these bottles. In other words, it would not be guilty of unjust enrichment if refund was granted. If the refund claim on furnishing the relevant proofs was not ultimately granted, the remedy of appeal provided under the rules had to be followed.On a minute and detailed perusal of the judgment of the Constitution Bench in the case of Burmah Shell Oil (supra), and the above noted inference drawn in the case of Acqueous Victuals (supra), we do not agree with the said submission of the appellant. We respectfully agree with the above noted inference drawn and are of the considered opinion that this Court in Acqueous Victuals (supra) has correctly appreciated the law laid down by the Constitution Bench in Burmah Shell Oil (supra).21. Though it was vehemently argued that the cost of the bottles and crates is amortized and included in the retail sale price of the aerated beverage but no facts were placed before the High Court in that regard. Moreover, even in case the same were placed, the same being disputed question of fact could not have been gone into by the High Court exercising the jurisdiction under Article 226 of the Constitution of India.22. In the present case, the definition ofis contained in Section 2(42) of the BPMC Act. Relevant entry in respect of aerated water in the octroi schedule under the said Rules is at serial no.11 (D). Relevant entry as regards bottles is at serial no.52. Relevant entry as regards barrel crate and individual crate, is at serial No.53E. The said Rules contain detailed provisions under which an importer can make an application for refund.23. Accordingly, in our opinion, as also laid down by this Court in Acqueous Victuals (supra), in case the appellant- company is sending out the same bottles for recycling and if the bottles and crates are not sold, used, or consumed in the Municipal limits of the respondent-Corporation, that is to say, if they have not finally rested in the Municipal limits of the respondent-Corporation in which they are imported, the appellant-company can always make an application for refund under the said Rules. The appellant-company will have to produce evidence on the points detailed in the Acqueous Victuals (supra) which we have quoted hereinabove. As submitted by the appellant, in case, the cost of the bottles and crates is amortized and included in the retail sale price of the aerated beverage, the evidence can also be placed in that regard, in order to claim refund on any such amount. Besides, it was also pointed out that bottles in which beverages are brought are recycled and used bottles and therefore levy of octroi cannot be at the same rate as that of the new bottles. These are also disputes on the facts, which would require production of evidence. On the appellant- company making an application for refund, the concerned authority will consider it in its proper perspective and if a case is made out shall grant refund.24. Needless to say, in case, the appellant is aggrieved by the valuation of the bottles and crates on the basis of which the impugned bill is issued they are at the liberty to file objections before the appropriate authority, and the appropriate authority will adjudicate the same in accordance with the law, as against which if still aggrieved, further remedy as available could be resorted to.25. At this stage it is pertinent to mention that during the hearing, the appellant has expressed its concern about the mechanism by which the said levy could be computed and collected as according to them the present procedure is very cumbersome and unworkable at both the ends, and moreover, the same would result into incurring of huge managerial time and administrative cost. After the present judgment was reserved for pronouncement, the appellant has also given proposals to the respondent corporation for devising a suitable and convenient mechanism. The said request on the part of the appellant requires consideration. Accordingly, the responded corporation shall consider the said proposal in accordance with law and even otherwise on their part devise a suitable, convenient and workable mechanism for levy and collection of octroi. | 0 | 4,394 | 2,062 | ### Instruction:
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of octroi in the penultimate paragraph of the Report at p. 234, the Court observed that the Burmah Shell was liable to pay octroi tax on goods brought into local area (a) to be consumed by itself or sold by it to consumers direct and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it. The Company was, however, not liable to octroi in respect of goods which it brought into the local area and which were re-exported. But to enable the Company to save itself from tax in that case it had to follow the procedure laid down by rules for refund of taxes.16. The aforesaid authoritative pronouncement of the Constitution Bench of this Court, therefore, sets at rest the controversy in the present case. If it is the case of the writ petitioner that during the relevant period from 1980 to 1987 it brought within the municipal limits of the four respondent-Municipalities beverages packed in bottles and the bottles were not sold within the municipal limits and after the beverages were taken out of these bottles, these very bottles were returned to the petitioner and were taken back to Bareilly, then for claiming the refund of the octroi paid on the weight of these bottles during the relevant period when the consignments entered the municipal limits from time to time, the writ petitioner had to follow the procedure laid down by the Municipality concerned under its rules for refund of taxes and had to comply with the statutory gamut of these rules. It had also to show that the burden of disputed octroi duty was borne by it and was not passed on to consumers of beverages contained in these bottles. In other words, it would not be guilty of unjust enrichment if refund was granted. If the refund claim on furnishing the relevant proofs was not ultimately granted, the remedy of appeal provided under the rules had to be followed.” 20. On a minute and detailed perusal of the judgment of the Constitution Bench in the case of Burmah Shell Oil (supra), and the above noted inference drawn in the case of Acqueous Victuals (supra), we do not agree with the said submission of the appellant. We respectfully agree with the above noted inference drawn and are of the considered opinion that this Court in Acqueous Victuals (supra) has correctly appreciated the law laid down by the Constitution Bench in Burmah Shell Oil (supra).21. Though it was vehemently argued that the cost of the bottles and crates is amortized and included in the retail sale price of the aerated beverage but no facts were placed before the High Court in that regard. Moreover, even in case the same were placed, the same being disputed question of fact could not have been gone into by the High Court exercising the jurisdiction under Article 226 of the Constitution of India.22. In the present case, the definition of “octroi” is contained in Section 2(42) of the BPMC Act. Relevant entry in respect of aerated water in the octroi schedule under the said Rules is at serial no.11 (D). Relevant entry as regards bottles is at serial no.52. Relevant entry as regards barrel crate and individual crate, is at serial No.53E. The said Rules contain detailed provisions under which an importer can make an application for refund.23. Accordingly, in our opinion, as also laid down by this Court in Acqueous Victuals (supra), in case the appellant- company is sending out the same bottles for recycling and if the bottles and crates are not sold, used, or consumed in the Municipal limits of the respondent-Corporation, that is to say, if they have not finally rested in the Municipal limits of the respondent-Corporation in which they are imported, the appellant-company can always make an application for refund under the said Rules. The appellant-company will have to produce evidence on the points detailed in the Acqueous Victuals (supra) which we have quoted hereinabove. As submitted by the appellant, in case, the cost of the bottles and crates is amortized and included in the retail sale price of the aerated beverage, the evidence can also be placed in that regard, in order to claim refund on any such amount. Besides, it was also pointed out that bottles in which beverages are brought are recycled and used bottles and therefore levy of octroi cannot be at the same rate as that of the new bottles. These are also disputes on the facts, which would require production of evidence. On the appellant- company making an application for refund, the concerned authority will consider it in its proper perspective and if a case is made out shall grant refund.24. Needless to say, in case, the appellant is aggrieved by the valuation of the bottles and crates on the basis of which the impugned bill is issued they are at the liberty to file objections before the appropriate authority, and the appropriate authority will adjudicate the same in accordance with the law, as against which if still aggrieved, further remedy as available could be resorted to.25. At this stage it is pertinent to mention that during the hearing, the appellant has expressed its concern about the mechanism by which the said levy could be computed and collected as according to them the present procedure is very cumbersome and unworkable at both the ends, and moreover, the same would result into incurring of huge managerial time and administrative cost. After the present judgment was reserved for pronouncement, the appellant has also given proposals to the respondent corporation for devising a suitable and convenient mechanism. The said request on the part of the appellant requires consideration. Accordingly, the responded corporation shall consider the said proposal in accordance with law and even otherwise on their part devise a suitable, convenient and workable mechanism for levy and collection of octroi.
### Response:
0
### Explanation:
position concerning the imposition of octroi in the penultimate paragraph of the Report at p. 234, the Court observed that the Burmah Shell was liable to pay octroi tax on goods brought into local area (a) to be consumed by itself or sold by it to consumers direct and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it. The Company was, however, not liable to octroi in respect of goods which it brought into the local area and which were re-exported. But to enable the Company to save itself from tax in that case it had to follow the procedure laid down by rules for refund of taxes.16. The aforesaid authoritative pronouncement of the Constitution Bench of this Court, therefore, sets at rest the controversy in the present case. If it is the case of the writ petitioner that during the relevant period from 1980 to 1987 it brought within the municipal limits of the four respondent-Municipalities beverages packed in bottles and the bottles were not sold within the municipal limits and after the beverages were taken out of these bottles, these very bottles were returned to the petitioner and were taken back to Bareilly, then for claiming the refund of the octroi paid on the weight of these bottles during the relevant period when the consignments entered the municipal limits from time to time, the writ petitioner had to follow the procedure laid down by the Municipality concerned under its rules for refund of taxes and had to comply with the statutory gamut of these rules. It had also to show that the burden of disputed octroi duty was borne by it and was not passed on to consumers of beverages contained in these bottles. In other words, it would not be guilty of unjust enrichment if refund was granted. If the refund claim on furnishing the relevant proofs was not ultimately granted, the remedy of appeal provided under the rules had to be followed.On a minute and detailed perusal of the judgment of the Constitution Bench in the case of Burmah Shell Oil (supra), and the above noted inference drawn in the case of Acqueous Victuals (supra), we do not agree with the said submission of the appellant. We respectfully agree with the above noted inference drawn and are of the considered opinion that this Court in Acqueous Victuals (supra) has correctly appreciated the law laid down by the Constitution Bench in Burmah Shell Oil (supra).21. Though it was vehemently argued that the cost of the bottles and crates is amortized and included in the retail sale price of the aerated beverage but no facts were placed before the High Court in that regard. Moreover, even in case the same were placed, the same being disputed question of fact could not have been gone into by the High Court exercising the jurisdiction under Article 226 of the Constitution of India.22. In the present case, the definition ofis contained in Section 2(42) of the BPMC Act. Relevant entry in respect of aerated water in the octroi schedule under the said Rules is at serial no.11 (D). Relevant entry as regards bottles is at serial no.52. Relevant entry as regards barrel crate and individual crate, is at serial No.53E. The said Rules contain detailed provisions under which an importer can make an application for refund.23. Accordingly, in our opinion, as also laid down by this Court in Acqueous Victuals (supra), in case the appellant- company is sending out the same bottles for recycling and if the bottles and crates are not sold, used, or consumed in the Municipal limits of the respondent-Corporation, that is to say, if they have not finally rested in the Municipal limits of the respondent-Corporation in which they are imported, the appellant-company can always make an application for refund under the said Rules. The appellant-company will have to produce evidence on the points detailed in the Acqueous Victuals (supra) which we have quoted hereinabove. As submitted by the appellant, in case, the cost of the bottles and crates is amortized and included in the retail sale price of the aerated beverage, the evidence can also be placed in that regard, in order to claim refund on any such amount. Besides, it was also pointed out that bottles in which beverages are brought are recycled and used bottles and therefore levy of octroi cannot be at the same rate as that of the new bottles. These are also disputes on the facts, which would require production of evidence. On the appellant- company making an application for refund, the concerned authority will consider it in its proper perspective and if a case is made out shall grant refund.24. Needless to say, in case, the appellant is aggrieved by the valuation of the bottles and crates on the basis of which the impugned bill is issued they are at the liberty to file objections before the appropriate authority, and the appropriate authority will adjudicate the same in accordance with the law, as against which if still aggrieved, further remedy as available could be resorted to.25. At this stage it is pertinent to mention that during the hearing, the appellant has expressed its concern about the mechanism by which the said levy could be computed and collected as according to them the present procedure is very cumbersome and unworkable at both the ends, and moreover, the same would result into incurring of huge managerial time and administrative cost. After the present judgment was reserved for pronouncement, the appellant has also given proposals to the respondent corporation for devising a suitable and convenient mechanism. The said request on the part of the appellant requires consideration. Accordingly, the responded corporation shall consider the said proposal in accordance with law and even otherwise on their part devise a suitable, convenient and workable mechanism for levy and collection of octroi.
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Sridam Saha Vs. The State of W.B | Khanna, J. 1. This is a petition through jail under Art. 32 of the Constitution for the issuance of a writ of habeas corpus by Sridam Saha, who has been ordered by the District Magistrate 24 Parganas to be detained under Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970) (hereinafter referred to as the Act.). According to the detention order, it was made with a view to preventing the petitioner from acting in any manner prejudicial to maintenance of public order. 2. The order of detention was made by the District Magistrate on June 23, 1971. The petitioner was arrested in pursuance of the detention order on June 28, 1971 and was served with the order of detention as well as the grounds of detention together with vernacular translation thereof. The same day, i.e., on June 28, 1971 the District Magistrate sent report to the State Government about the passing of the detention order along with the grounds of detention and other necessary particulars. The State Government considered the matter and approved the detention order on July 3, 1971. Necessary report was also sent on that day by the State Government to the Central Government. On July 14, 1971 the State Government received a representation from the petitioner. The said representation, after being considered by the State Government, was rejected on July 27, 1971. The State Government placed on July 27, 1971 the case of the petitioner before the Advisory Board. The representation of the petitioner was also sent to the Advisory Board. Another representation was thereafter sent by the petitioner on August 12, 1971. The said representation was rejected by the State Government on August 27, 1971 and was thereafter forwarded to the Advisory Board. The Board, after considering the material placed before it and after hearing the detenu in person, sent its report to the State Government on August 30, 1971. Opinion was expressed by the Board that there was sufficient cause for the detention of the petitioner. On September 8, 1971 the order for the detention of the petitioner was confirmed by the State Government. The confirmation order was thereafter communicated to the petitioner. 3. Affidavit of Shri Hironmoy Chakravarty, Assistant Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition. Mrs. Bagga has argued the case amicus curiae on behalf of the petitioner, while the State has been represented by Mr. Chatterjee.4. It has been argued on behalf of the petitioner that the ground for which he has been detained was not germane to the object for which a detention order can be made. In this connection we find that according to the grounds of detention, the petitioner was being detained on the ground that he had been acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below: That on the night of 1-6-71 at about 01.30 hrs. while committing theft of rice from wagon No. SE 39751 at Bongaon Rly. Station Yard, you and your associates charged bombs upon the on-duty R. P. F. Party with a view to do away with their lives, when challenged by them. As a result of your bomb charge SR 3179 Himungshu Bhusan Dhar Sharma of the R. P. F. Party sustained burn injury on his person. By explosion of bombs you and your associates created panic in the station area and in the adjoining locality you created disturbance of public order thereby. The particulars given above show that the petitioner and his associates attacked the members of the Railway Protection Force on duty with bombs while committing theft of rice from a railway wagon at Bongaon railway station yard. As a result of the throwing of the bombs a member of the Railway Protection Force sustained burn injury. The above act of the petitioner and his associates is stated to have created panic in the station area and the adjoining locality and, as such, disturbed public order. The above ground, in our opinion, is germane to the object for which detention can be ordered under Clause (d) of sub-section (2) of Section 3 of the Act. 5. It may be stated that three other persons, namely, Jagannath Das, Nandlal Roy and Netaipada Shah were ordered to be detained in respect of the same incident on account of which order for the petitioners detention has been made. Jagannath Das filed writ petition No. 13 of 1972 and the same was dismissed by this Court on 12-4-1972 = (reported in AIR 1972 SC 1564 ), Nandlal Roy filed Writ Petition No. 15 of 1972 and the same was dismissed by this Court on 11-4-1972 = (reported in AIR 1972 SC 1566 ), Writ Petn. No. 18 of 1972 filed by Netaipada Shah was dismissed by this Court on 18-4-1972 = (reported in AIR 1972 SC 1650 ). It was held that the three orders for the detention had been validly made. No contention was raised in the case of Jagannath Das that the act attributed to the detenu was not germane to the ground for which a detention order could legally be made. Such a contention was, however, raised in the other two cases and was repelled. In the case of Nandlal Roy it was held that the acts attributed to the detenu were such as would bring the case squarely within the ambit of Clauses (b) and (d) of sub-section (2) of Section 3 of the Act. In the case of Netaipada Shah this Court held that the acts of the detenu and his associates would fall under Section 3 (2) (d) of the Act. 6. The case of the petitioner being not different from that of the other three petitioners mentioned above, his petition must also share the fate of the petitions filed by the other three detenus. | 0[ds]4. It has been argued on behalf of the petitioner that the ground for which he has been detained was not germane to the object for which a detention order can be made.In this connection we find that according to the grounds of detention, the petitioner was being detained on the ground that he had been acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below:That on the night of1 at about 01.30 hrs. while committing theft of rice from wagon No. SE 39751 at Bongaon Rly. Station Yard, you and your associates charged bombs upon they R. P. F. Party with a view to do away with their lives, when challenged by them. As a result of your bomb charge SR 3179 Himungshu Bhusan Dhar Sharma of the R. P. F. Party sustained burn injury on his person. By explosion of bombs you and your associates created panic in the station area and in the adjoining locality you created disturbance of public order therebyThe particulars given above show that the petitioner and his associates attacked the members of the Railway Protection Force on duty with bombs while committing theft of rice from a railway wagon at Bongaon railway station yard. As a result of the throwing of the bombs a member of the Railway Protection Force sustained burn injury. The above act of the petitioner and his associates is stated to have created panic in the station area and the adjoining locality and, as such, disturbed public order. The above ground, in our opinion, is germane to the object for which detention can be ordered under Clause (d) ofn (2) of Section 3 of the Act5. It may be stated that three other persons, namely, Jagannath Das, Nandlal Roy and Netaipada Shah were ordered to be detained in respect of the same incident on account of which order for the petitioners detention has been made. Jagannath Das filed writ petition No. 13 of 1972 and the same was dismissed by this Court on2 = (reported in AIR 1972 SC 1564 ), Nandlal Roy filed Writ Petition No. 15 of 1972 and the same was dismissed by this Court on2 = (reported in AIR 1972 SC 1566 ), Writ Petn. No. 18 of 1972 filed by Netaipada Shah was dismissed by this Court on2 = (reported in AIR 1972 SC 1650 ). It was held that the three orders for the detention had been validly made. No contention was raised in the case of Jagannath Das that the act attributed to the detenu was not germane to the ground for which a detention order could legally be made. Such a contention was, however, raised in the other two cases and was repelled. In the case of Nandlal Roy it was held that the acts attributed to the detenu were such as would bring the case squarely within the ambit of Clauses (b) and (d) ofn (2) of Section 3 of theIn the case of Netaipada Shah this Court held that the acts of the detenu and his associates would fall under Section 3 (2) (d) of the Act6. The case of the petitioner being not different from that of the other three petitioners mentioned above, his petition must also share the fate of the petitions filed by the other three detenus. | 0 | 1,100 | 618 | ### Instruction:
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Khanna, J. 1. This is a petition through jail under Art. 32 of the Constitution for the issuance of a writ of habeas corpus by Sridam Saha, who has been ordered by the District Magistrate 24 Parganas to be detained under Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970) (hereinafter referred to as the Act.). According to the detention order, it was made with a view to preventing the petitioner from acting in any manner prejudicial to maintenance of public order. 2. The order of detention was made by the District Magistrate on June 23, 1971. The petitioner was arrested in pursuance of the detention order on June 28, 1971 and was served with the order of detention as well as the grounds of detention together with vernacular translation thereof. The same day, i.e., on June 28, 1971 the District Magistrate sent report to the State Government about the passing of the detention order along with the grounds of detention and other necessary particulars. The State Government considered the matter and approved the detention order on July 3, 1971. Necessary report was also sent on that day by the State Government to the Central Government. On July 14, 1971 the State Government received a representation from the petitioner. The said representation, after being considered by the State Government, was rejected on July 27, 1971. The State Government placed on July 27, 1971 the case of the petitioner before the Advisory Board. The representation of the petitioner was also sent to the Advisory Board. Another representation was thereafter sent by the petitioner on August 12, 1971. The said representation was rejected by the State Government on August 27, 1971 and was thereafter forwarded to the Advisory Board. The Board, after considering the material placed before it and after hearing the detenu in person, sent its report to the State Government on August 30, 1971. Opinion was expressed by the Board that there was sufficient cause for the detention of the petitioner. On September 8, 1971 the order for the detention of the petitioner was confirmed by the State Government. The confirmation order was thereafter communicated to the petitioner. 3. Affidavit of Shri Hironmoy Chakravarty, Assistant Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition. Mrs. Bagga has argued the case amicus curiae on behalf of the petitioner, while the State has been represented by Mr. Chatterjee.4. It has been argued on behalf of the petitioner that the ground for which he has been detained was not germane to the object for which a detention order can be made. In this connection we find that according to the grounds of detention, the petitioner was being detained on the ground that he had been acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below: That on the night of 1-6-71 at about 01.30 hrs. while committing theft of rice from wagon No. SE 39751 at Bongaon Rly. Station Yard, you and your associates charged bombs upon the on-duty R. P. F. Party with a view to do away with their lives, when challenged by them. As a result of your bomb charge SR 3179 Himungshu Bhusan Dhar Sharma of the R. P. F. Party sustained burn injury on his person. By explosion of bombs you and your associates created panic in the station area and in the adjoining locality you created disturbance of public order thereby. The particulars given above show that the petitioner and his associates attacked the members of the Railway Protection Force on duty with bombs while committing theft of rice from a railway wagon at Bongaon railway station yard. As a result of the throwing of the bombs a member of the Railway Protection Force sustained burn injury. The above act of the petitioner and his associates is stated to have created panic in the station area and the adjoining locality and, as such, disturbed public order. The above ground, in our opinion, is germane to the object for which detention can be ordered under Clause (d) of sub-section (2) of Section 3 of the Act. 5. It may be stated that three other persons, namely, Jagannath Das, Nandlal Roy and Netaipada Shah were ordered to be detained in respect of the same incident on account of which order for the petitioners detention has been made. Jagannath Das filed writ petition No. 13 of 1972 and the same was dismissed by this Court on 12-4-1972 = (reported in AIR 1972 SC 1564 ), Nandlal Roy filed Writ Petition No. 15 of 1972 and the same was dismissed by this Court on 11-4-1972 = (reported in AIR 1972 SC 1566 ), Writ Petn. No. 18 of 1972 filed by Netaipada Shah was dismissed by this Court on 18-4-1972 = (reported in AIR 1972 SC 1650 ). It was held that the three orders for the detention had been validly made. No contention was raised in the case of Jagannath Das that the act attributed to the detenu was not germane to the ground for which a detention order could legally be made. Such a contention was, however, raised in the other two cases and was repelled. In the case of Nandlal Roy it was held that the acts attributed to the detenu were such as would bring the case squarely within the ambit of Clauses (b) and (d) of sub-section (2) of Section 3 of the Act. In the case of Netaipada Shah this Court held that the acts of the detenu and his associates would fall under Section 3 (2) (d) of the Act. 6. The case of the petitioner being not different from that of the other three petitioners mentioned above, his petition must also share the fate of the petitions filed by the other three detenus.
### Response:
0
### Explanation:
4. It has been argued on behalf of the petitioner that the ground for which he has been detained was not germane to the object for which a detention order can be made.In this connection we find that according to the grounds of detention, the petitioner was being detained on the ground that he had been acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below:That on the night of1 at about 01.30 hrs. while committing theft of rice from wagon No. SE 39751 at Bongaon Rly. Station Yard, you and your associates charged bombs upon they R. P. F. Party with a view to do away with their lives, when challenged by them. As a result of your bomb charge SR 3179 Himungshu Bhusan Dhar Sharma of the R. P. F. Party sustained burn injury on his person. By explosion of bombs you and your associates created panic in the station area and in the adjoining locality you created disturbance of public order therebyThe particulars given above show that the petitioner and his associates attacked the members of the Railway Protection Force on duty with bombs while committing theft of rice from a railway wagon at Bongaon railway station yard. As a result of the throwing of the bombs a member of the Railway Protection Force sustained burn injury. The above act of the petitioner and his associates is stated to have created panic in the station area and the adjoining locality and, as such, disturbed public order. The above ground, in our opinion, is germane to the object for which detention can be ordered under Clause (d) ofn (2) of Section 3 of the Act5. It may be stated that three other persons, namely, Jagannath Das, Nandlal Roy and Netaipada Shah were ordered to be detained in respect of the same incident on account of which order for the petitioners detention has been made. Jagannath Das filed writ petition No. 13 of 1972 and the same was dismissed by this Court on2 = (reported in AIR 1972 SC 1564 ), Nandlal Roy filed Writ Petition No. 15 of 1972 and the same was dismissed by this Court on2 = (reported in AIR 1972 SC 1566 ), Writ Petn. No. 18 of 1972 filed by Netaipada Shah was dismissed by this Court on2 = (reported in AIR 1972 SC 1650 ). It was held that the three orders for the detention had been validly made. No contention was raised in the case of Jagannath Das that the act attributed to the detenu was not germane to the ground for which a detention order could legally be made. Such a contention was, however, raised in the other two cases and was repelled. In the case of Nandlal Roy it was held that the acts attributed to the detenu were such as would bring the case squarely within the ambit of Clauses (b) and (d) ofn (2) of Section 3 of theIn the case of Netaipada Shah this Court held that the acts of the detenu and his associates would fall under Section 3 (2) (d) of the Act6. The case of the petitioner being not different from that of the other three petitioners mentioned above, his petition must also share the fate of the petitions filed by the other three detenus.
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Subhechha Welfare Society Vs. M/s. Earth Infrastructure Pvt. Ltd | R. Subhash Reddy, J. 1. These civil appeals are filed by the complainant in Consumer Complaint Nos.1196 and 1197 of 2016, aggrieved by the order dated 06.12.2016 and the order dated 05.01.2017 in R.A.Nos.312 and 313 of 2016 passed by the National Consumer Disputes Redressal Commission (for short, NCDRC), New Delhi. 2. The appellant-complainant is a registered Welfare Society. Consumer Complaint No.1196 of 2016 has been filed by the complainant on behalf of 8 allottees and Consumer Complaint No.1197 of 2016 has been filed by the complainant on behalf of 12 allottees with the allegations that buyers booked units with the opposite party on different dates and inspite of making major payment, possession has not been delivered to them. In the aforesaid complaint directions are sought against the opposite party to hand over possession of units in all respects or in the alternative to provide other flat of identical size or to refund the amount deposited along with interest and compensation. 3. It is the case of the appellant that the complainant being a society registered under Haryana Registration and Regulation Act has filed complaint on behalf of allottees, under Section 12(1)(b) of the Consumer Protection Act, 1986 (for short, the Act). 4. Both the complaints filed by the appellant-complainant are dismissed vide impugned order dated 06.12.2016 on the ground that recognised consumer association can file complaint on behalf of single consumer only, but cannot file complaint on behalf of several consumers in one complaint. Review applications preferred against the dismissal of the complaints have also been dismissed vide order dated 05.01.2017 which order is also under challenge. 5. We have heard Sri Ashwani Kumar, learned counsel appearing for the appellant. Inspite of service of notice, there is no appearance on behalf of the respondent. 6. Learned counsel appearing for the appellant has submitted that the reasoning assigned by the NCDRC for dismissing the complaints as not maintainable, is erroneous as much as there is no restriction on the voluntary registered association to file complaint on behalf of single consumer only. It is submitted that the restriction as recorded in the impugned order will defeat the very purpose of registering an association. Learned counsel has also brought to our notice an order of the NCDRC in Consumer Complaint No.816 of 2016 wherein the Tribunal has recorded a finding that, Section 12(1)(b) of the Act does not preclude the recognised consumer association from filing a composite complaint on behalf of more than one consumers, having a similar grievance against the seller of the goods or the provider of services, as the case may be. Further, it is submitted that the said order is affirmed by this Court as the Civil Appeal Nos.10882 of 2016 etc. titled M/s. Amrapali Sapphire Developer Pvt. Ltd. v. M/s. Amrapali Sapphire Flat Buyers Welfare Association preferred against the orders passed by the NCDRC are dismissed by order dated 21.02.2017. 7. Having considered the submissions made by the learned counsel for the appellant and on perusal of the impugned order and other material placed on record, we are of the view that the finding of the NCDRC that recognised consumer association can file complaint on behalf of a single consumer, but cannot file complaint on behalf of several consumers in one complaint, is erroneous and there is no legal basis for that. From a reading of Section 12(1)(b) of the Act read with Explanation to Section 12 it is clear that voluntary registered association can file a complaint on behalf of its members to espouse their grievances. There is nothing in the aforesaid provision of the Act which would restrict its application to the complaint pertaining to an individual complainant. If a recognised consumer association is made to file multiple complaints in respect of several consumers having a similar cause of action, that would defeat the very purpose of registration of a society or association and it would result only in multiplicity of proceedings without serving any useful purpose. 8. We are in agreement with the view taken by the NCDRC in interpreting the provisions of Section 12(1)(b) of the Act in order dated 30 th August 2016 in Consumer Complaint No.816 of 2016 passed in the case of Amrapali Sapphire Flat Buyers Welfare Association etc. v. Amrapali Sapphire Developers Pvt. Ltd. etc. which is also affirmed by this Court by virtue of dismissal of Civil Appeal Nos.10882 of 2016 etc. vide order dated 21.02.2017. | 1[ds]7. Having considered the submissions made by the learned counsel for the appellant and on perusal of the impugned order and other material placed on record, we are of the view that the finding of the NCDRC that recognised consumer association can file complaint on behalf of a single consumer, but cannot file complaint on behalf of several consumers in one complaint, is erroneous and there is no legal basis for that. From a reading of Section 12(1)(b) of the Act read with Explanation to Section 12 it is clear that voluntary registered association can file a complaint on behalf of its members to espouse their grievances. There is nothing in the aforesaid provision of the Act which would restrict its application to the complaint pertaining to an individual complainant. If a recognised consumer association is made to file multiple complaints in respect of several consumers having a similar cause of action, that would defeat the very purpose of registration of a society or association and it would result only in multiplicity of proceedings without serving any useful purpose8. We are in agreement with the view taken by the NCDRC in interpreting the provisions of Section 12(1)(b) of the Act in order dated 30 th August 2016 in Consumer Complaint No.816 of 2016 passed in the case of Amrapali Sapphire Flat Buyers Welfare Association etc. v. Amrapali Sapphire Developers Pvt. Ltd. etc. which is also affirmed by this Court by virtue of dismissal of Civil Appeal Nos.10882 of 2016 etc. vide order dated 21.02.2017. | 1 | 823 | 285 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
R. Subhash Reddy, J. 1. These civil appeals are filed by the complainant in Consumer Complaint Nos.1196 and 1197 of 2016, aggrieved by the order dated 06.12.2016 and the order dated 05.01.2017 in R.A.Nos.312 and 313 of 2016 passed by the National Consumer Disputes Redressal Commission (for short, NCDRC), New Delhi. 2. The appellant-complainant is a registered Welfare Society. Consumer Complaint No.1196 of 2016 has been filed by the complainant on behalf of 8 allottees and Consumer Complaint No.1197 of 2016 has been filed by the complainant on behalf of 12 allottees with the allegations that buyers booked units with the opposite party on different dates and inspite of making major payment, possession has not been delivered to them. In the aforesaid complaint directions are sought against the opposite party to hand over possession of units in all respects or in the alternative to provide other flat of identical size or to refund the amount deposited along with interest and compensation. 3. It is the case of the appellant that the complainant being a society registered under Haryana Registration and Regulation Act has filed complaint on behalf of allottees, under Section 12(1)(b) of the Consumer Protection Act, 1986 (for short, the Act). 4. Both the complaints filed by the appellant-complainant are dismissed vide impugned order dated 06.12.2016 on the ground that recognised consumer association can file complaint on behalf of single consumer only, but cannot file complaint on behalf of several consumers in one complaint. Review applications preferred against the dismissal of the complaints have also been dismissed vide order dated 05.01.2017 which order is also under challenge. 5. We have heard Sri Ashwani Kumar, learned counsel appearing for the appellant. Inspite of service of notice, there is no appearance on behalf of the respondent. 6. Learned counsel appearing for the appellant has submitted that the reasoning assigned by the NCDRC for dismissing the complaints as not maintainable, is erroneous as much as there is no restriction on the voluntary registered association to file complaint on behalf of single consumer only. It is submitted that the restriction as recorded in the impugned order will defeat the very purpose of registering an association. Learned counsel has also brought to our notice an order of the NCDRC in Consumer Complaint No.816 of 2016 wherein the Tribunal has recorded a finding that, Section 12(1)(b) of the Act does not preclude the recognised consumer association from filing a composite complaint on behalf of more than one consumers, having a similar grievance against the seller of the goods or the provider of services, as the case may be. Further, it is submitted that the said order is affirmed by this Court as the Civil Appeal Nos.10882 of 2016 etc. titled M/s. Amrapali Sapphire Developer Pvt. Ltd. v. M/s. Amrapali Sapphire Flat Buyers Welfare Association preferred against the orders passed by the NCDRC are dismissed by order dated 21.02.2017. 7. Having considered the submissions made by the learned counsel for the appellant and on perusal of the impugned order and other material placed on record, we are of the view that the finding of the NCDRC that recognised consumer association can file complaint on behalf of a single consumer, but cannot file complaint on behalf of several consumers in one complaint, is erroneous and there is no legal basis for that. From a reading of Section 12(1)(b) of the Act read with Explanation to Section 12 it is clear that voluntary registered association can file a complaint on behalf of its members to espouse their grievances. There is nothing in the aforesaid provision of the Act which would restrict its application to the complaint pertaining to an individual complainant. If a recognised consumer association is made to file multiple complaints in respect of several consumers having a similar cause of action, that would defeat the very purpose of registration of a society or association and it would result only in multiplicity of proceedings without serving any useful purpose. 8. We are in agreement with the view taken by the NCDRC in interpreting the provisions of Section 12(1)(b) of the Act in order dated 30 th August 2016 in Consumer Complaint No.816 of 2016 passed in the case of Amrapali Sapphire Flat Buyers Welfare Association etc. v. Amrapali Sapphire Developers Pvt. Ltd. etc. which is also affirmed by this Court by virtue of dismissal of Civil Appeal Nos.10882 of 2016 etc. vide order dated 21.02.2017.
### Response:
1
### Explanation:
7. Having considered the submissions made by the learned counsel for the appellant and on perusal of the impugned order and other material placed on record, we are of the view that the finding of the NCDRC that recognised consumer association can file complaint on behalf of a single consumer, but cannot file complaint on behalf of several consumers in one complaint, is erroneous and there is no legal basis for that. From a reading of Section 12(1)(b) of the Act read with Explanation to Section 12 it is clear that voluntary registered association can file a complaint on behalf of its members to espouse their grievances. There is nothing in the aforesaid provision of the Act which would restrict its application to the complaint pertaining to an individual complainant. If a recognised consumer association is made to file multiple complaints in respect of several consumers having a similar cause of action, that would defeat the very purpose of registration of a society or association and it would result only in multiplicity of proceedings without serving any useful purpose8. We are in agreement with the view taken by the NCDRC in interpreting the provisions of Section 12(1)(b) of the Act in order dated 30 th August 2016 in Consumer Complaint No.816 of 2016 passed in the case of Amrapali Sapphire Flat Buyers Welfare Association etc. v. Amrapali Sapphire Developers Pvt. Ltd. etc. which is also affirmed by this Court by virtue of dismissal of Civil Appeal Nos.10882 of 2016 etc. vide order dated 21.02.2017.
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Shri Keshab Chandra Das Vs. State of West Bengal & Others | Krishna Iyer, J.1. The petitioner has challenged the validity of the order of detention passed on December 22, 1971 under S. 3(1) and (3), read with S. 5(a), of the Maintenance of Internal Security Act (Act 26 of 1971). The grounds on which the District Magistrate relied were communicated to the detenu and they relate to maintenance of supplies and services essential to the community. The three instances, all of 1971, relate to removal of rice from lorries carrying foodgrains on F.C.I. account, in Calcutta.2. The petitioner was arrested on December 12, 1971, on which date grounds of detention were also served on him, as required by the statute. The Government was informed which approved the detention and communicated the factum of the detention to the Central Government. The representation of the detenu was received on January 14, 1972 and was considered by the Government on January 21, 1972, which rejected the representation. The Advisory Board to which the representation was forwarded also considered it but recommended the continuance of the detention. Finally, the State Government confirmed the detention on March 16, 1973.3.The major ground of attack was based on the absence of any definite time-limit for the duration of the detention, since, according to the petitioner, "till expiry of Defence of India Act, 1971" did not satisfy the constitutional condition. However, this point does not survive now, having been overruled by a decision of this Court in Fagu Shah v. State of West Bengal, Writ Petns. Nos. 41 etc. of 1973; judgment delivered on 20-12-1973=(Reported in AIR 1974 SC 613 = 1974 Cri LJ 486).4. We are satisfied that the grounds relied on have a rational relation to the subjective satisfaction regarding the prejudicial activities imputed to the petitioner. We are also satisfied that no valid ground has been made out on the basis of lack of proximity between the incidents relied on and the order made. Nor is there any infirmity in the nature of the communication of the grounds to the detenu, in answer to which he had a constitutional right to make a representation. While we affirm the decisions of this Court rendered in Shaik Hanif v. State of West Bengal, W. P. Nos. 1679 of 1973 etc. Judgment D/-1-2-1974 = (reported in AIR 1974 SC 679 = 1974 Cri LJ 606) and Bhut Nath v. State of West Bengal W. P. No. 1456 of 1973 Judgment D/-8-2-1974 = (reported in AIR 1974 SC 806 =1974 Cri LJ 690) we are satisfied that there is no substance in the contention of the counsel. Shri Maheswari, appearing as amicus curiae that there has been withholding of any material grounds which had influenced the authorities. | 0[ds]4. We are satisfied that the grounds relied on have a rational relation to the subjective satisfaction regarding the prejudicial activities imputed to the petitioner. We are also satisfied that no valid ground has been made out on the basis of lack of proximity between the incidents relied on and the order made. Nor is there any infirmity in the nature of the communication of the grounds to the detenu, in answer to which he had a constitutional right to make a representation. While we affirm the decisions of this Court rendered in Shaik Hanif v. State of West Bengal, W. P. Nos. 1679 of 1973 etc. Judgment= (reported in AIR 1974 SC 679 = 1974 Cri LJ 606) and Bhut Nath v. State of West Bengal W. P. No. 1456 of 1973 Judgment= (reported in AIR 1974 SC 806 =1974 Cri LJ 690) we are satisfied that there is no substance in the contention of the counsel. Shri Maheswari, appearing as amicus curiae that there has been withholding of any material grounds which had influenced the authorities. | 0 | 515 | 198 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
Krishna Iyer, J.1. The petitioner has challenged the validity of the order of detention passed on December 22, 1971 under S. 3(1) and (3), read with S. 5(a), of the Maintenance of Internal Security Act (Act 26 of 1971). The grounds on which the District Magistrate relied were communicated to the detenu and they relate to maintenance of supplies and services essential to the community. The three instances, all of 1971, relate to removal of rice from lorries carrying foodgrains on F.C.I. account, in Calcutta.2. The petitioner was arrested on December 12, 1971, on which date grounds of detention were also served on him, as required by the statute. The Government was informed which approved the detention and communicated the factum of the detention to the Central Government. The representation of the detenu was received on January 14, 1972 and was considered by the Government on January 21, 1972, which rejected the representation. The Advisory Board to which the representation was forwarded also considered it but recommended the continuance of the detention. Finally, the State Government confirmed the detention on March 16, 1973.3.The major ground of attack was based on the absence of any definite time-limit for the duration of the detention, since, according to the petitioner, "till expiry of Defence of India Act, 1971" did not satisfy the constitutional condition. However, this point does not survive now, having been overruled by a decision of this Court in Fagu Shah v. State of West Bengal, Writ Petns. Nos. 41 etc. of 1973; judgment delivered on 20-12-1973=(Reported in AIR 1974 SC 613 = 1974 Cri LJ 486).4. We are satisfied that the grounds relied on have a rational relation to the subjective satisfaction regarding the prejudicial activities imputed to the petitioner. We are also satisfied that no valid ground has been made out on the basis of lack of proximity between the incidents relied on and the order made. Nor is there any infirmity in the nature of the communication of the grounds to the detenu, in answer to which he had a constitutional right to make a representation. While we affirm the decisions of this Court rendered in Shaik Hanif v. State of West Bengal, W. P. Nos. 1679 of 1973 etc. Judgment D/-1-2-1974 = (reported in AIR 1974 SC 679 = 1974 Cri LJ 606) and Bhut Nath v. State of West Bengal W. P. No. 1456 of 1973 Judgment D/-8-2-1974 = (reported in AIR 1974 SC 806 =1974 Cri LJ 690) we are satisfied that there is no substance in the contention of the counsel. Shri Maheswari, appearing as amicus curiae that there has been withholding of any material grounds which had influenced the authorities.
### Response:
0
### Explanation:
4. We are satisfied that the grounds relied on have a rational relation to the subjective satisfaction regarding the prejudicial activities imputed to the petitioner. We are also satisfied that no valid ground has been made out on the basis of lack of proximity between the incidents relied on and the order made. Nor is there any infirmity in the nature of the communication of the grounds to the detenu, in answer to which he had a constitutional right to make a representation. While we affirm the decisions of this Court rendered in Shaik Hanif v. State of West Bengal, W. P. Nos. 1679 of 1973 etc. Judgment= (reported in AIR 1974 SC 679 = 1974 Cri LJ 606) and Bhut Nath v. State of West Bengal W. P. No. 1456 of 1973 Judgment= (reported in AIR 1974 SC 806 =1974 Cri LJ 690) we are satisfied that there is no substance in the contention of the counsel. Shri Maheswari, appearing as amicus curiae that there has been withholding of any material grounds which had influenced the authorities.
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Bhupendra Singh Vs. State of Uttar Pradesh and Others | SARKARIA, J. Special leave to appeal granted.2. This is an appeal by special against a judgment, dated May, 23, 1978, of the High Court of Allahabad, whereby Civil Miscellaneous Writ Petition 4499 of 1977 arising out of Revenue Appeal 253 of 1977 was dismissed.3. The Prescribed Authority under Section 10(2) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (U. P. Act 1 of 1961) (as amended by U. P. Act of 1973) issued notice to the appellant to show cause why 25. 93 acres of land be not declared as surplus with him. In response to this notice, the appellant filed objections stating, inter alia, (i) that the entire land was unirrigated and it had been wrongly shown in the notice as irrigated land (ii) that he had sold 40 acres of his land) 20 acres to Puspek Singh and 20 acres to Raghubir Singh Sondhi) on July 23, 1971 and August 9, 1971 by registered sale deeds, for adequate consideration and in good faith and (iii) that the sales were effected to raise funds for constructing a residential house in Delhi. He further stated that he had delivered possession to the vendees. The Prescribed Authority rejected the objecting of the appellant and ignored these sales and declared 25.93 acres of land as surplus with the appellant.4. Against that order of the Prescribed Authority, the appellant carried an appeal to the Appellate Authority (District Judge, Rampur), who, by his order dated December 8, 1977, partly allowed the appeal and held that the whole of the land held by the appellant was unirrigated land. With regard to the aforesaid two sales made by the appellant, the Appellate authority held that the sales were genuine, but the same could not be upheld because "no compelling necessity had been brought on record to show that the sales were not made to avoid nay ceiling law".5. The appellants contention was that since he was in the Army Service, he had made these sales after obtaining permission from the Army Authorities in order to raise funds for building a residential house for himself in Delhi. The Appellant Authority did not hold that the sales were not for adequate consideration or were fictitious or benami : On the contrary, he found them to be genuine, but ignored the same simply because in his opinion, raising funds for building a residential house in Delhi, was not a valid compelling necessity for the sales.6. We have by our judgment in Brijendra Singh v. State of U. P., allowed the appeal of Brijendra Singh, in which the facts found by the Appellate Authority were almost identical. The sales in that case were also made to raise funds to meet the expenses of constructing a residential house in Delhi. In that case, also, the sales were found to be genuine and for adequate consideration, but were ignored merely on the ground that no impelling necessity for the sales had been established and that the purpose of raising funds for building a residential house at Delhi was not such a necessity. We have held in that case that : (SCC p. 603, para 20)Once it is established by the transferring transferring tenure holder that the transfer in question was effected in the course of ordinary management of his affairs, was made for adequate consideration and he had genuinely, absolutely and irrevocably divested himself of all right, title and interest (including cultivator possession) in the land in favour of the transfer, the onus under Explanation II (to proviso (b) of Section 5(6), in the absence of any circumstances suggestive of collusion, or an intention or design to defraud or circumvent the Ceiling Act, on the tenure holders to show that the transfer was effected in good faith, will stand discharged, and it will not be necessary for the tenure holder to prove further that the transfer was made for an impelling need or to raise money for meeting a pressing legal necessity.This rule laid down in Brijendra Singh case squarely applies to the sales in question in the instant case. The sales were held to be genuine and or adequate consideration in favour of persons who were not alleged to he related to the appellant in any way. They were not benami sales; the tenure holder did not reserve any immediate or deferred benefit for himself or the other members of his family under these sales which were made under an irrevocable registered instrument. They were made in the course of ordinary management of his affairs by the transferor viz., to raise funds for building a house at Delhi. All the facts and conditions necessary to claim the protection of Section 5(6) proviso (b) were satisfied in this case. | 1[ds]The Appellant Authority did not hold that the sales were not for adequate consideration or were fictitious or benami : On the contrary, he found them to be genuine, but ignored the same simply because in his opinion, raising funds for building a residential house in Delhi, was not a valid compelling necessity for the sales.6. We have by our judgment in Brijendra Singh v. State of U. P., allowed the appeal of Brijendra Singh, in which the facts found by the Appellate Authority were almost identical. The sales in that case were also made to raise funds to meet the expenses of constructing a residential house in Delhi. In that case, also, the sales were found to be genuine and for adequate consideration, but were ignored merely on the ground that no impelling necessity for the sales had been established and that the purpose of raising funds for building a residential house at Delhi was not such a necessity. We have held in that case that : (SCC p. 603, para 20)Once it is established by the transferring transferring tenure holder that the transfer in question was effected in the course of ordinary management of his affairs, was made for adequate consideration and he had genuinely, absolutely and irrevocably divested himself of all right, title and interest (including cultivator possession) in the land in favour of the transfer, the onus under Explanation II (to proviso (b) of Section 5(6), in the absence of any circumstances suggestive of collusion, or an intention or design to defraud or circumvent the Ceiling Act, on the tenure holders to show that the transfer was effected in good faith, will stand discharged, and it will not be necessary for the tenure holder to prove further that the transfer was made for an impelling need or to raise money for meeting a pressing legal necessity.This rule laid down in Brijendra Singh case squarely applies to the sales in question in the instant case. The sales were held to be genuine and or adequate consideration in favour of persons who were not alleged to he related to the appellant in any way. They were not benami sales; the tenure holder did not reserve any immediate or deferred benefit for himself or the other members of his family under these sales which were made under an irrevocable registered instrument. They were made in the course of ordinary management of his affairs by the transferor viz., to raise funds for building a house at Delhi. All the facts and conditions necessary to claim the protection of Section 5(6) proviso (b) were satisfied in this case. | 1 | 890 | 487 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
SARKARIA, J. Special leave to appeal granted.2. This is an appeal by special against a judgment, dated May, 23, 1978, of the High Court of Allahabad, whereby Civil Miscellaneous Writ Petition 4499 of 1977 arising out of Revenue Appeal 253 of 1977 was dismissed.3. The Prescribed Authority under Section 10(2) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (U. P. Act 1 of 1961) (as amended by U. P. Act of 1973) issued notice to the appellant to show cause why 25. 93 acres of land be not declared as surplus with him. In response to this notice, the appellant filed objections stating, inter alia, (i) that the entire land was unirrigated and it had been wrongly shown in the notice as irrigated land (ii) that he had sold 40 acres of his land) 20 acres to Puspek Singh and 20 acres to Raghubir Singh Sondhi) on July 23, 1971 and August 9, 1971 by registered sale deeds, for adequate consideration and in good faith and (iii) that the sales were effected to raise funds for constructing a residential house in Delhi. He further stated that he had delivered possession to the vendees. The Prescribed Authority rejected the objecting of the appellant and ignored these sales and declared 25.93 acres of land as surplus with the appellant.4. Against that order of the Prescribed Authority, the appellant carried an appeal to the Appellate Authority (District Judge, Rampur), who, by his order dated December 8, 1977, partly allowed the appeal and held that the whole of the land held by the appellant was unirrigated land. With regard to the aforesaid two sales made by the appellant, the Appellate authority held that the sales were genuine, but the same could not be upheld because "no compelling necessity had been brought on record to show that the sales were not made to avoid nay ceiling law".5. The appellants contention was that since he was in the Army Service, he had made these sales after obtaining permission from the Army Authorities in order to raise funds for building a residential house for himself in Delhi. The Appellant Authority did not hold that the sales were not for adequate consideration or were fictitious or benami : On the contrary, he found them to be genuine, but ignored the same simply because in his opinion, raising funds for building a residential house in Delhi, was not a valid compelling necessity for the sales.6. We have by our judgment in Brijendra Singh v. State of U. P., allowed the appeal of Brijendra Singh, in which the facts found by the Appellate Authority were almost identical. The sales in that case were also made to raise funds to meet the expenses of constructing a residential house in Delhi. In that case, also, the sales were found to be genuine and for adequate consideration, but were ignored merely on the ground that no impelling necessity for the sales had been established and that the purpose of raising funds for building a residential house at Delhi was not such a necessity. We have held in that case that : (SCC p. 603, para 20)Once it is established by the transferring transferring tenure holder that the transfer in question was effected in the course of ordinary management of his affairs, was made for adequate consideration and he had genuinely, absolutely and irrevocably divested himself of all right, title and interest (including cultivator possession) in the land in favour of the transfer, the onus under Explanation II (to proviso (b) of Section 5(6), in the absence of any circumstances suggestive of collusion, or an intention or design to defraud or circumvent the Ceiling Act, on the tenure holders to show that the transfer was effected in good faith, will stand discharged, and it will not be necessary for the tenure holder to prove further that the transfer was made for an impelling need or to raise money for meeting a pressing legal necessity.This rule laid down in Brijendra Singh case squarely applies to the sales in question in the instant case. The sales were held to be genuine and or adequate consideration in favour of persons who were not alleged to he related to the appellant in any way. They were not benami sales; the tenure holder did not reserve any immediate or deferred benefit for himself or the other members of his family under these sales which were made under an irrevocable registered instrument. They were made in the course of ordinary management of his affairs by the transferor viz., to raise funds for building a house at Delhi. All the facts and conditions necessary to claim the protection of Section 5(6) proviso (b) were satisfied in this case.
### Response:
1
### Explanation:
The Appellant Authority did not hold that the sales were not for adequate consideration or were fictitious or benami : On the contrary, he found them to be genuine, but ignored the same simply because in his opinion, raising funds for building a residential house in Delhi, was not a valid compelling necessity for the sales.6. We have by our judgment in Brijendra Singh v. State of U. P., allowed the appeal of Brijendra Singh, in which the facts found by the Appellate Authority were almost identical. The sales in that case were also made to raise funds to meet the expenses of constructing a residential house in Delhi. In that case, also, the sales were found to be genuine and for adequate consideration, but were ignored merely on the ground that no impelling necessity for the sales had been established and that the purpose of raising funds for building a residential house at Delhi was not such a necessity. We have held in that case that : (SCC p. 603, para 20)Once it is established by the transferring transferring tenure holder that the transfer in question was effected in the course of ordinary management of his affairs, was made for adequate consideration and he had genuinely, absolutely and irrevocably divested himself of all right, title and interest (including cultivator possession) in the land in favour of the transfer, the onus under Explanation II (to proviso (b) of Section 5(6), in the absence of any circumstances suggestive of collusion, or an intention or design to defraud or circumvent the Ceiling Act, on the tenure holders to show that the transfer was effected in good faith, will stand discharged, and it will not be necessary for the tenure holder to prove further that the transfer was made for an impelling need or to raise money for meeting a pressing legal necessity.This rule laid down in Brijendra Singh case squarely applies to the sales in question in the instant case. The sales were held to be genuine and or adequate consideration in favour of persons who were not alleged to he related to the appellant in any way. They were not benami sales; the tenure holder did not reserve any immediate or deferred benefit for himself or the other members of his family under these sales which were made under an irrevocable registered instrument. They were made in the course of ordinary management of his affairs by the transferor viz., to raise funds for building a house at Delhi. All the facts and conditions necessary to claim the protection of Section 5(6) proviso (b) were satisfied in this case.
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Karamchand Premchand Private Limited Vs. Commissioner of Income Tax | of the assessee-company under rule I of the Second Schedule to the Super Profits Tax Act, 1963 (Rs.) (i) Amount set apart for contingent liability (taxation) 4, 50, 000 (ii) Amount set apart for proposed dividend 19, 90, 000 (iii) Reserve for depreciation fund in excess of the amount allowed as depreciation in income-tax 6, 77, 122 (iv) Excess provision in revenue accounts disallowed in income-tax assessment for the assessment years. 3, 61, 876 2. Though the question refers to four items, we are concerned in this appeal only with the first item. We shall, therefore, state the facts only in so far as they are relevant to the said item. 3. The assessee is a private limited company. The assessment year concerned is 1963-64. Some time in 1955-56, a notice was issued to the assessee under section 23A of the Indian Income-tax Act, 1922. Apprehending that it may become liable to pay additional tax under the said provision, the assessee set apart a sum of Rs. 6, 52, 000 in its books for the year ending March 31, 1956. Out of this amount an amount of Rs. 2, 02, 000 was transferred to the profit and loss account during the year 1958-59, with the result that a sum of Rs. 4, 50, 000 continued to remain and was shown as a provision set apart to meet the taxation liability which the assessee called a contingent liability. At the same time the assessee had been contesting the proceedings taken against it under section 23A. Though it failed at the earlier stages, it succeeded ultimately in the Letters Patent Appeal filed by it in the East Punjab High Court. In the said appeal decided on May 24, 1965, it was held that no action can be taken against the assessee under section 23A. With this order, all the orders passed and notices issued under the said provision prior to the date of the said judgment stood vacatedIn its assessment relating to the assessment year 1963-64 under the Super Profits Tax Act, the assessee contended that the said sum of Rs. 4, 50, 000 is a reserve and should be included in its capital for the purposes of the Act. The Income-tax Officer did not agree and the matter was ultimately taken to the Income-tax Appellate Tribunal. By the date this appeal was taken up for hearing, another appeal preferred by the assessee relating to the subsequent assessment year (1964-65) was also before the Tribunal. That appeal arose under the provisions of the Companies Profits Surtax Act, 1964, which replaced the Super Profits Tax Act. The Tribunal first disposed of the appeal relating to the assessment year 1964-65. In so far as the item in question is concerned it held that it was a reserve. Following the said judgment, the appeal pertaining to the assessment year 1963-64 was also allowed. (It may be stated that the order of the Tribunal relating to assessment year 1964-65 was subsequently rectified by an order dated February 15, 1972, and the said item was held to be a provision. But no such order was passed with respect to the assessment year 1963-64). 4. Aggrieved by the judgment of the Tribunal, the Revenue obtained the aforesaid reference. The High Court answered the same in favour of the Revenue and against the assessee following the decision of this court in Metal Box Co. of India Limited v. Their Workmen. It held that the said amount being a provision made towards a liability which had attached on account of the issuance of a notice was a provision and not a reserve. In this appeal the correctness of the said view is questioned. Learned counsel for the appellant-assessee submitted that inasmuch as no order levying additional tax under section 23A was made on or before the date relevant to the assessment year 1963-64, the said amount cannot be treated as a provision. We find it difficult to agree. In Metal Box, which has been followed in Vazir Sultan Tobacco Co. Ltd. v. CIT the distinction between provision and reserve is stated in the following words (at page 569) " The distinction between a provision and a reserve is in commercial accountancy fairly well known. Provisions made against anticipated losses and contingencies are charges against profits and, therefore, to be taken into account against gross receipts in the profit and loss account and the balance-sheet. On the other hand, reserves are appropriations of profits, the assets by which they are represented being retained to form part of the capital employed in the business. Provisions are usually shown in the balance-sheet by way of deductions from the assets in respect of which they are made whereas general reserves and reserve funds are shown as part of the proprietors interest. (See Spicer and Peglers Book Keeping and Accounts, Fifteenth edition, at page 42 )." While approving the said statement, it was stated in Vazir Sultan: "In other words the broad distinction between the two is that whereas a provision is a charge against the profits to be taken into account against gross receipts in the profit and loss account, a reserve is an appropriation of profits, the asset or assets by which it is represented being retained to form part of the capital employed in the business. Bearing in mind the aforesaid broad distinction we will briefly indicate how the two concepts are defined and dealt with by the Companies Act, 1956." 5. Applying the said test it must be held that the provision made by the assessee in its books for meeting the anticipated liability of tax (under section 23A) was indeed a provision and not a reserve. The assessee itself called it a provision. It did not call it a reserve nor was it set apart or appropriated as a reserve. We are not suggesting that the description given or the book entries made by the assessee are conclusive. We are only emphasizing how the assessee understood the said item itself. | 0[ds]While approving the said statement, it was stated in Vazir Sultan"In other words the broad distinction between the two is that whereas a provision is a charge against the profits to be taken into account against gross receipts in the profit and loss account, a reserve is an appropriation of profits, the asset or assets by which it is represented being retained to form part of the capital employed in the business. Bearing in mind the aforesaid broad distinction we will briefly indicate how the two concepts are defined and dealt with by the Companies Act, 1956.Applying the said test it must be held that the provision made by the assessee in its books for meeting the anticipated liability of tax (under section 23A) was indeed a provision and not a reserve. The assessee itself called it a provision. It did not call it a reserve nor was it set apart or appropriated as a reserve. We are not suggesting that the description given or the book entries made by the assessee are conclusive. We are only emphasizing how the assessee understood the said item itself. | 0 | 1,208 | 204 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
of the assessee-company under rule I of the Second Schedule to the Super Profits Tax Act, 1963 (Rs.) (i) Amount set apart for contingent liability (taxation) 4, 50, 000 (ii) Amount set apart for proposed dividend 19, 90, 000 (iii) Reserve for depreciation fund in excess of the amount allowed as depreciation in income-tax 6, 77, 122 (iv) Excess provision in revenue accounts disallowed in income-tax assessment for the assessment years. 3, 61, 876 2. Though the question refers to four items, we are concerned in this appeal only with the first item. We shall, therefore, state the facts only in so far as they are relevant to the said item. 3. The assessee is a private limited company. The assessment year concerned is 1963-64. Some time in 1955-56, a notice was issued to the assessee under section 23A of the Indian Income-tax Act, 1922. Apprehending that it may become liable to pay additional tax under the said provision, the assessee set apart a sum of Rs. 6, 52, 000 in its books for the year ending March 31, 1956. Out of this amount an amount of Rs. 2, 02, 000 was transferred to the profit and loss account during the year 1958-59, with the result that a sum of Rs. 4, 50, 000 continued to remain and was shown as a provision set apart to meet the taxation liability which the assessee called a contingent liability. At the same time the assessee had been contesting the proceedings taken against it under section 23A. Though it failed at the earlier stages, it succeeded ultimately in the Letters Patent Appeal filed by it in the East Punjab High Court. In the said appeal decided on May 24, 1965, it was held that no action can be taken against the assessee under section 23A. With this order, all the orders passed and notices issued under the said provision prior to the date of the said judgment stood vacatedIn its assessment relating to the assessment year 1963-64 under the Super Profits Tax Act, the assessee contended that the said sum of Rs. 4, 50, 000 is a reserve and should be included in its capital for the purposes of the Act. The Income-tax Officer did not agree and the matter was ultimately taken to the Income-tax Appellate Tribunal. By the date this appeal was taken up for hearing, another appeal preferred by the assessee relating to the subsequent assessment year (1964-65) was also before the Tribunal. That appeal arose under the provisions of the Companies Profits Surtax Act, 1964, which replaced the Super Profits Tax Act. The Tribunal first disposed of the appeal relating to the assessment year 1964-65. In so far as the item in question is concerned it held that it was a reserve. Following the said judgment, the appeal pertaining to the assessment year 1963-64 was also allowed. (It may be stated that the order of the Tribunal relating to assessment year 1964-65 was subsequently rectified by an order dated February 15, 1972, and the said item was held to be a provision. But no such order was passed with respect to the assessment year 1963-64). 4. Aggrieved by the judgment of the Tribunal, the Revenue obtained the aforesaid reference. The High Court answered the same in favour of the Revenue and against the assessee following the decision of this court in Metal Box Co. of India Limited v. Their Workmen. It held that the said amount being a provision made towards a liability which had attached on account of the issuance of a notice was a provision and not a reserve. In this appeal the correctness of the said view is questioned. Learned counsel for the appellant-assessee submitted that inasmuch as no order levying additional tax under section 23A was made on or before the date relevant to the assessment year 1963-64, the said amount cannot be treated as a provision. We find it difficult to agree. In Metal Box, which has been followed in Vazir Sultan Tobacco Co. Ltd. v. CIT the distinction between provision and reserve is stated in the following words (at page 569) " The distinction between a provision and a reserve is in commercial accountancy fairly well known. Provisions made against anticipated losses and contingencies are charges against profits and, therefore, to be taken into account against gross receipts in the profit and loss account and the balance-sheet. On the other hand, reserves are appropriations of profits, the assets by which they are represented being retained to form part of the capital employed in the business. Provisions are usually shown in the balance-sheet by way of deductions from the assets in respect of which they are made whereas general reserves and reserve funds are shown as part of the proprietors interest. (See Spicer and Peglers Book Keeping and Accounts, Fifteenth edition, at page 42 )." While approving the said statement, it was stated in Vazir Sultan: "In other words the broad distinction between the two is that whereas a provision is a charge against the profits to be taken into account against gross receipts in the profit and loss account, a reserve is an appropriation of profits, the asset or assets by which it is represented being retained to form part of the capital employed in the business. Bearing in mind the aforesaid broad distinction we will briefly indicate how the two concepts are defined and dealt with by the Companies Act, 1956." 5. Applying the said test it must be held that the provision made by the assessee in its books for meeting the anticipated liability of tax (under section 23A) was indeed a provision and not a reserve. The assessee itself called it a provision. It did not call it a reserve nor was it set apart or appropriated as a reserve. We are not suggesting that the description given or the book entries made by the assessee are conclusive. We are only emphasizing how the assessee understood the said item itself.
### Response:
0
### Explanation:
While approving the said statement, it was stated in Vazir Sultan"In other words the broad distinction between the two is that whereas a provision is a charge against the profits to be taken into account against gross receipts in the profit and loss account, a reserve is an appropriation of profits, the asset or assets by which it is represented being retained to form part of the capital employed in the business. Bearing in mind the aforesaid broad distinction we will briefly indicate how the two concepts are defined and dealt with by the Companies Act, 1956.Applying the said test it must be held that the provision made by the assessee in its books for meeting the anticipated liability of tax (under section 23A) was indeed a provision and not a reserve. The assessee itself called it a provision. It did not call it a reserve nor was it set apart or appropriated as a reserve. We are not suggesting that the description given or the book entries made by the assessee are conclusive. We are only emphasizing how the assessee understood the said item itself.
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THE STATE OF KERALA Vs. GOURI | Abhay Manohar Sapre, J. 1. This appeal is filed by the State against the final judgment and order dated 10.08.2007 passed by the Division Bench of the High Court of Kerala at Ernakulam in M.F.A. No.297 of 2001 whereby the High Court allowed the MFA filed by the respondents herein (land owners) and set aside the order of the Forest Tribunal. 2. Few facts for the disposal of this appeal need mention hereinbelow. 3. At the outset, we consider it apposite to mention that this appeal was heard analogously with the Civil Appeal No.9912/2010 because the controversy involved in this appeal and in Civil Appeal No.9912/2010 was identical in nature. This Court by detailed order passed today has dismissed Civil Appeal No.9912/2010. 4. Having heard the learned counsel for the appellant (State) and on perusal of the record of this case and keeping in view our reasoning contained in the detailed order passed in Civil Appeal No.9912/2010, we find no good ground to interfere with the impugned order for the following reasons. 5. First, so far as the question of interpretation of relevant provisions of Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as ?the Act?) is concerned, this Court has dealt with the said question in detail in the order passed in Civil Appeal No.9912/2010. It would be applicable to this case also while examining the facts of this case because the case at hand also arises out of the same Act. 6. Second, so far as the issues relating to respondents? land is concerned such as - when the respondents acquired the land in question,whether such acquisition by the respondents was prior to the appointed day, i.e., 10.05.1971 or later and, if so, how it was made, whether the acquired land was being used for personal cultivation by the landowners (respondents herein) and, if so, since when, all these questions were examined by the High Court and the categorical findings were recorded in respondents? favour by setting aside the findings of the Tribunal. 7. In other words, the High Court held that the land was acquired by the respondents (landowners) prior to the appointed day and was being used for personal cultivation by the respondents-landowners. This findings were recorded on the basis of the commissioner?s report, who made on the spot inspection of the land in presence of both the parties. 8. These findings are based on proper appreciation of evidence. No kind of any perversity or arbitrariness or illegality is noticed in these findings. In other words, these findings satisfy the twin requirements of Section 3 (3) of the Act and, therefore, entitle the respondents to claim exemption of their land from being vested in the State under the Act and, in our view, these findings are rendered in conformity with the law laid down by this Court in Joseph & Anr. vs. State of Kerala & Anr., (2007)10 SCC 414 . The High Court, therefore, rightly held that the respondents are entitled to claim exemption of their land in question. 9. In view of the foregoing discussion,we find no merit in this appeal. | 0[ds]4. Having heard the learned counsel for the appellant (State) and on perusal of the record of this case and keeping in view our reasoning contained in the detailed order passed in Civil Appeal No.9912/2010, we find no good ground to interfere with the impugned order for the following. First, so far as the question of interpretation of relevant provisions of Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as ?the Act?) is concerned, this Court has dealt with the said question in detail in the order passed in Civil Appeal No.9912/2010. It would be applicable to this casealso while examining the facts of this case because the case at hand also arises out of the same. Second, so far as the issues relating to respondents? land is concerned such as - when the respondents acquired the land in question,whether such acquisition by the respondents was prior to the appointed day, i.e., 10.05.1971 or later and, if so, howit was made, whether the acquired land was being used for personal cultivation by the landowners (respondents herein) and, if so, since when, all these questions were examined by the High Court and the categorical findingswere recorded in respondents? favour by setting aside the findings of the. In other words, the High Court held that the land was acquired by the respondents (landowners) prior to the appointed day and was being used for personal cultivation by the respondents-landowners. Thisfindings were recorded on the basis of the commissioner?s report, who made on the spot inspection of the land in presence of both the. These findings are based on proper appreciation of evidence. No kind of any perversity or arbitrariness or illegality is noticed in these findings.In other words, these findings satisfy the twin requirements of Section 3 (3) of the Act and, therefore, entitle the respondents to claim exemption of their land from being vested in the State under the Act and, in our view, these findings are rendered in conformity with the law laid down by this Court in Joseph & Anr.vs. State of Kerala & Anr., (2007)10 SCC 414 . The High Court, therefore, rightly held that the respondents are entitled to claim exemption of their land in. In view of the foregoing discussion,we find no merit in this appeal. | 0 | 598 | 445 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
Abhay Manohar Sapre, J. 1. This appeal is filed by the State against the final judgment and order dated 10.08.2007 passed by the Division Bench of the High Court of Kerala at Ernakulam in M.F.A. No.297 of 2001 whereby the High Court allowed the MFA filed by the respondents herein (land owners) and set aside the order of the Forest Tribunal. 2. Few facts for the disposal of this appeal need mention hereinbelow. 3. At the outset, we consider it apposite to mention that this appeal was heard analogously with the Civil Appeal No.9912/2010 because the controversy involved in this appeal and in Civil Appeal No.9912/2010 was identical in nature. This Court by detailed order passed today has dismissed Civil Appeal No.9912/2010. 4. Having heard the learned counsel for the appellant (State) and on perusal of the record of this case and keeping in view our reasoning contained in the detailed order passed in Civil Appeal No.9912/2010, we find no good ground to interfere with the impugned order for the following reasons. 5. First, so far as the question of interpretation of relevant provisions of Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as ?the Act?) is concerned, this Court has dealt with the said question in detail in the order passed in Civil Appeal No.9912/2010. It would be applicable to this case also while examining the facts of this case because the case at hand also arises out of the same Act. 6. Second, so far as the issues relating to respondents? land is concerned such as - when the respondents acquired the land in question,whether such acquisition by the respondents was prior to the appointed day, i.e., 10.05.1971 or later and, if so, how it was made, whether the acquired land was being used for personal cultivation by the landowners (respondents herein) and, if so, since when, all these questions were examined by the High Court and the categorical findings were recorded in respondents? favour by setting aside the findings of the Tribunal. 7. In other words, the High Court held that the land was acquired by the respondents (landowners) prior to the appointed day and was being used for personal cultivation by the respondents-landowners. This findings were recorded on the basis of the commissioner?s report, who made on the spot inspection of the land in presence of both the parties. 8. These findings are based on proper appreciation of evidence. No kind of any perversity or arbitrariness or illegality is noticed in these findings. In other words, these findings satisfy the twin requirements of Section 3 (3) of the Act and, therefore, entitle the respondents to claim exemption of their land from being vested in the State under the Act and, in our view, these findings are rendered in conformity with the law laid down by this Court in Joseph & Anr. vs. State of Kerala & Anr., (2007)10 SCC 414 . The High Court, therefore, rightly held that the respondents are entitled to claim exemption of their land in question. 9. In view of the foregoing discussion,we find no merit in this appeal.
### Response:
0
### Explanation:
4. Having heard the learned counsel for the appellant (State) and on perusal of the record of this case and keeping in view our reasoning contained in the detailed order passed in Civil Appeal No.9912/2010, we find no good ground to interfere with the impugned order for the following. First, so far as the question of interpretation of relevant provisions of Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as ?the Act?) is concerned, this Court has dealt with the said question in detail in the order passed in Civil Appeal No.9912/2010. It would be applicable to this casealso while examining the facts of this case because the case at hand also arises out of the same. Second, so far as the issues relating to respondents? land is concerned such as - when the respondents acquired the land in question,whether such acquisition by the respondents was prior to the appointed day, i.e., 10.05.1971 or later and, if so, howit was made, whether the acquired land was being used for personal cultivation by the landowners (respondents herein) and, if so, since when, all these questions were examined by the High Court and the categorical findingswere recorded in respondents? favour by setting aside the findings of the. In other words, the High Court held that the land was acquired by the respondents (landowners) prior to the appointed day and was being used for personal cultivation by the respondents-landowners. Thisfindings were recorded on the basis of the commissioner?s report, who made on the spot inspection of the land in presence of both the. These findings are based on proper appreciation of evidence. No kind of any perversity or arbitrariness or illegality is noticed in these findings.In other words, these findings satisfy the twin requirements of Section 3 (3) of the Act and, therefore, entitle the respondents to claim exemption of their land from being vested in the State under the Act and, in our view, these findings are rendered in conformity with the law laid down by this Court in Joseph & Anr.vs. State of Kerala & Anr., (2007)10 SCC 414 . The High Court, therefore, rightly held that the respondents are entitled to claim exemption of their land in. In view of the foregoing discussion,we find no merit in this appeal.
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Faqir Chand Vs. Harnam Kaur & Anr | suit before the decree for sale was passed in the mortgage suit. 8. The next question is whether the son is entitled to impeach the mortgage of a joint family property made neither for legal necessity nor for payment of an antecedent debt, and if so, whether the remedy is available to him after the mortgagee has obtained a decree against the father on the mortgage. We think that the answer to this question should be in the affirmative. 9. In the present case, the Full Bench of the High Court (AIR 1961 Punj 138 FB) took the view that while the first and third propositions in Brij Narains case, 51 Ind App 129: (AIR 1924 PC 50) were generally applicab1e to the managing members of joint families, the second proposition was self contained and was intended to lay down an exception in the case of joint families consisting of father and sons only. The view taken was that the third proposition did nor apply where the joint family consists of father and sons. We are unable to agree with this view. The first proposition sets out the general rule regarding the power of the managing member of a joint family to alienate or burden the estate. The second and third propositions lay down the special rules applicable when the managing member is the father, and deals specially with his power to mortgage the estate for payment of his antecedent debt. Reading the first and third propositions together it will appear that a father who is also the manager of the family has no power to mortgage the estate, except for legal necessity or for payment of an antecedent debt. 10. Counsel for the appellant stated that under the law by which the appellant is governed, a mortgage of a joint family property not being one for legal necessity or for payment of an antecedent debt will not bind the property only to the extent of the sons interest therein. Before the mortgager, obtained the decree on the mortgage, the appellant was therefore entitled to a declaration that such a mortgage did not bind his interest in the property. Is the position altered by the passing of the decree? We think not. The decree against the father does not of its own force create a mortgage binding on the sons interest. The security of the creditor is not enlarged by the passing of the decree. In spite of the passing of the preliminary or final decree for sale against the father, the mortgage will not as before, bind the sons interest in the property, and the son will be entitled to ask for a declaration that his interest has not been alienated either by the mortgage or by the decree. 11. It follows that in the absence of a finding on the question of legal necessity, this appeal cannot be completely disposed of. The Courts below have not recorded any finding on this issue. Normally, we would have remanded the matter to the High Court for a finding on the point. But considering that the litigation is now pending for the last 14 years and the sale of the property has been improperly stayed for a long time, we have thought it fit to examine for ourselves the evidence on the record with regard to this issue. Murari Lal took a loan of Rs. 75,000/ - from the mortgagee. Out of this sum, Rs. 31,000/- was borrowed for discharging antecedent debts. It is not disputed that the mortgage to the extent it secures repayment of Rs. 31.000/- binds the appellants interest in the property. Rs. 3000/- was paid to Murari for meeting the stamp and other expenses in connection with the mortgage. The balance sum of Rs. 41,000/- was paid to him by cheque. In the mortgage deed, Murari Lal stated that he would spend this sum of Rs. 41.000/- in his business, for the maintenance of the family and for the education of the appellant. Counsel for the appellant submitted that Murari Lal did not carry on any business and the mortgagees case that the loan was taken partly for purposes of business should not be accepted. The testimony of Baburam, Manohar and Sukhbashi Lal shows that Murari Lal was carrying on business in silver and gold lace. Murari Lal denied that he ever carried on business after his fathers death which took place in 1906. The appellant, Sitaram, Ram Sarup and Prabhu Dayal support him. We are unable to accept the testimony of Murari Lal and other witnesses that Murari Lal did not carry on any business since 1906.The deed of partition between Murari and Ram Sarup dated December 14, 1939 recited that Murari Lal was by occupation a sarafa and rentier. The mortgage deed dated June 7, 1949 stated that the occupation of Murari Lal was silver and gold business. The endorsement of the Sub Registrar on this deed described him as saraf by occupation. Counsel for the appellant submitted that there is a material discrepancy between the oral evidence and the recitals, in the mortgage deed. The oral evidence shows that Murari Lal was carrying on business in gold silver lace whereas the mortgage deed shows that he was carrying on business in gold and silver. We think that the description of saraf or gold and silver business in the mortgage deed was used loosely to indicate business in silver and gold lace. If Murari gold and silver, it was not necessary for the plaintiff to set up the case of that he was carrying on a business in silver and gold lace. If Murari Lal was carrying on a business, it is not disputed that the business was a joint family business. The loan of Rs.75,000/- was thus taken by Murari Lal partly for payment of antecedent debts and partly for purpose of this family business and other legal necessities. The mortgage in its entirety bound the property including the interest of the appellant therein. | 0[ds]4. The second proposition laid down in Brij Narains case 51 Ind App 129: (AIR 1024 PC 50) is founded upon the pious obligation of a Hindu son limited to his interest in the joint family property to pay the debt contracted by the father for his own benefit and not for any immoral or illegal purpose. By incurring the debt, the father enables the creditor to sell the property in execution of a decree against him for payment of the debt. The son is under a pious obligation to pay all debts of the father, whether secured or unsecured. We think that the second proposition applies not only to an unsecured debt but also to a mortgage debt which the father is personally liable to payWe are not inclined to confine the second proposition within such narrow limits.It is the existence of the fathers debt that enables the creditor to sell the property in execution of a money decree against the father. Likewise, if a mortgage decree against the father directs the sale of the property for the payment of his debt, the creditor may sell the property in execution of the decree. It is true that the procedure for the execution of a money decree is different from that for the enforcement of a mortgage decree. A money decree is executed by attachment and sale of the debtors property. For the execution of the mortgage decree, an attachment of the property is not necessary and the property is sold by force of the decree. But this distinction in procedure does not affect the pious obligation of a Hindu son to pay his fathers debt. As in the case of a money decree, under a mortgage decree also the property is sold for payment of the fathers debt. The father could voluntarily sell the property for payment of his debt. If there is no voluntary sale by the father, the creditor can ask the Court to do compulsorily what the father could have done voluntarily. The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit; so his creditor may bring about such a sale by the intervention of a suitWe are unable to accept this view. The second proposition applies not only after but also before the sale is held. It is well settled that the second proposition applies in the case of a money decree for payment of the debt before the sale is held, and we see no reason why it should not so apply in the case of a mortgage decree for payment of the debt by the sale of the property. If there is a just debt owing by the father, it is open to the creditor to realise the debt by the sale of the property in execution of the mortgage decree. The son has no right to interfere with the execution of the decree or with the sale of the property in execration proceedings, unless he can show that the debt for which the property is sold is either non-existent or is tainted with immorality or illegality. It follows that the appellant is not entitled to restrain the sale of his interest in the property in execution of the mortgage decree for sale7. In this case, the appellant obtained all interim order for stay of sale of the property. We think that the High Court improperly passed this order. The appellant had no right to obtain either an interim or final order for stay of the sale having regard to the fact that admittedly the debt was owing by the father and was not incurred for immoral or illegal purposes. Nor did he acquire such a right because he instituted this suit before the decree for sale was passed in the mortgage suit9. In the present case, the Full Bench of the High Court (AIR 1961 Punj 138 FB) took the view that while the first and third propositions in Brij Narains case, 51 Ind App 129: (AIR 1924 PC 50) were generally applicab1e to the managing members of joint families, the second proposition was self contained and was intended to lay down an exception in the case of joint families consisting of father and sons only. The view taken was that the third proposition did nor apply where the joint family consists of father and sons. We are unable to agree with this view. The first proposition sets out the general rule regarding the power of the managing member of a joint family to alienate or burden the estate. The second and third propositions lay down the special rules applicable when the managing member is the father, and deals specially with his power to mortgage the estate for payment of his antecedent debt. Reading the first and third propositions together it will appear that a father who is also the manager of the family has no power to mortgage the estate, except for legal necessity or for payment of an antecedent debtThe first proposition sets out the general rule regarding the power of the managing member of a joint family to alienate or burden the estate. The second and third propositions lay down the special rules applicable when the managing member is the father, and deals specially with his power to mortgage the estate for payment of his antecedent debt. Reading the first and third propositions together it will appear that a father who is also the manager of the family has no power to mortgage the estate, except for legal necessity or for payment of an antecedent debtNormally, we would have remanded the matter to the High Court for a finding on the point. But considering that the litigation is now pending for the last 14 years and the sale of the property has been improperly stayed for a long time, we have thought it fit to examine for ourselves the evidence on the record with regard to this issue. Murari Lal took a loan of Rs. 75,000/ - from the mortgagee. Out of this sum, Rs. 31,000/- was borrowed for discharging antecedent debts. It is not disputed that the mortgage to the extent it secures repayment of Rs. 31.000/- binds the appellants interest in the property. Rs. 3000/- was paid to Murari for meeting the stamp and other expenses in connection with the mortgage. The balance sum of Rs. 41,000/- was paid to him by cheque. In the mortgage deed, Murari Lal stated that he would spend this sum of Rs. 41.000/- in his business, for the maintenance of the family and for the education of the appellant. Counsel for the appellant submitted that Murari Lal did not carry on any business and the mortgagees case that the loan was taken partly for purposes of business should not be accepted. The testimony of Baburam, Manohar and Sukhbashi Lal shows that Murari Lal was carrying on business in silver and gold lace. Murari Lal denied that he ever carried on business after his fathers death which took place in 1906. The appellant, Sitaram, Ram Sarup and Prabhu Dayal support him. We are unable to accept the testimony of Murari Lal and other witnesses that Murari Lal did not carry on any business since 1906.The deed of partition between Murari and Ram Sarup dated December 14, 1939 recited that Murari Lal was by occupation a sarafa and rentier. The mortgage deed dated June 7, 1949 stated that the occupation of Murari Lal was silver and gold business. The endorsement of the Sub Registrar on this deed described him as saraf by occupation. Counsel for the appellant submitted that there is a material discrepancy between the oral evidence and the recitals, in the mortgage deed. The oral evidence shows that Murari Lal was carrying on business in gold silver lace whereas the mortgage deed shows that he was carrying on business in gold and silver. We think that the description of saraf or gold and silver business in the mortgage deed was used loosely to indicate business in silver and gold lace. If Murari gold and silver, it was not necessary for the plaintiff to set up the case of that he was carrying on a business in silver and gold lace. If Murari Lal was carrying on a business, it is not disputed that the business was a joint family business. The loan of Rs.75,000/- was thus taken by Murari Lal partly for payment of antecedent debts and partly for purpose of this family business and other legal necessities. The mortgage in its entirety bound the property including the interest of the appellant thereinIs the position altered by the passing of the decree? We think not. The decree against the father does not of its own force create a mortgage binding on the sons interest. The security of the creditor is not enlarged by the passing of the decree. In spite of the passing of the preliminary or final decree for sale against the father, the mortgage will not as before, bind the sons interest in the property, and the son will be entitled to ask for a declaration that his interest has not been alienated either by the mortgage or by the decree11. It follows that in the absence of a finding on the question of legal necessity, this appeal cannot be completely disposed of. The Courts below have not recorded any finding on this issue.Normally, we would have remanded the matter to the High Court for a finding on the point. But considering that the litigation is now pending for the last 14 years and the sale of the property has been improperly stayed for a long time, we have thought it fit to examine for ourselves the evidence on the record with regard to this issue. Murari Lal took a loan of Rs. 75,000/from the mortgagee. Out of this sum, Rs. 31,000/was borrowed for discharging antecedent debts. It is not disputed that the mortgage to the extent it secures repayment of Rs. 31.000/binds the appellants interest in the property. Rs. 3000/was paid to Murari for meeting the stamp and other expenses in connection with the mortgage. The balance sum of Rs. 41,000/was paid to him by cheque. In the mortgage deed, Murari Lal stated that he would spend this sum of Rs. 41.000/in his business, for the maintenance of the family and for the education of the appellant. Counsel for the appellant submitted that Murari Lal did not carry on any business and the mortgagees case that the loan was taken partly for purposes of business should not be accepted. The testimony of Baburam, Manohar and Sukhbashi Lal shows that Murari Lal was carrying on business in silver and gold lace. Murari Lal denied that he ever carried on business after his fathers death which took place in 1906. The appellant, Sitaram, Ram Sarup and Prabhu Dayal support him. We are unable to accept the testimony of Murari Lal and other witnesses that Murari Lal did not carry on any business since 1906.The deed of partition between Murari and Ram Sarup dated December 14, 1939 recited that Murari Lal was by occupation a sarafa and rentier. The mortgage deed dated June 7, 1949 stated that the occupation of Murari Lal was silver and gold business. The endorsement of the Sub Registrar on this deed described him as saraf by occupation. Counsel for the appellant submitted that there is a material discrepancy between the oral evidence and the recitals, in the mortgage deed. The oral evidence shows that Murari Lal was carrying on business in gold silver lace whereas the mortgage deed shows that he was carrying on business in gold and silver. We think that the description of saraf or gold and silver business in the mortgage deed was used loosely to indicate business in silver and gold lace. If Murari gold and silver, it was not necessary for the plaintiff to set up the case of that he was carrying on a business in silver and gold lace. If Murari Lal was carrying on a business, it is not disputed that the business was a joint family business. The loan of Rs.75,000/was thus taken by Murari Lal partly for payment of antecedent debts and partly for purpose of this family business and other legal necessities. The mortgage in its entirety bound the property including the interest of the appellant | 0 | 3,779 | 2,227 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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suit before the decree for sale was passed in the mortgage suit. 8. The next question is whether the son is entitled to impeach the mortgage of a joint family property made neither for legal necessity nor for payment of an antecedent debt, and if so, whether the remedy is available to him after the mortgagee has obtained a decree against the father on the mortgage. We think that the answer to this question should be in the affirmative. 9. In the present case, the Full Bench of the High Court (AIR 1961 Punj 138 FB) took the view that while the first and third propositions in Brij Narains case, 51 Ind App 129: (AIR 1924 PC 50) were generally applicab1e to the managing members of joint families, the second proposition was self contained and was intended to lay down an exception in the case of joint families consisting of father and sons only. The view taken was that the third proposition did nor apply where the joint family consists of father and sons. We are unable to agree with this view. The first proposition sets out the general rule regarding the power of the managing member of a joint family to alienate or burden the estate. The second and third propositions lay down the special rules applicable when the managing member is the father, and deals specially with his power to mortgage the estate for payment of his antecedent debt. Reading the first and third propositions together it will appear that a father who is also the manager of the family has no power to mortgage the estate, except for legal necessity or for payment of an antecedent debt. 10. Counsel for the appellant stated that under the law by which the appellant is governed, a mortgage of a joint family property not being one for legal necessity or for payment of an antecedent debt will not bind the property only to the extent of the sons interest therein. Before the mortgager, obtained the decree on the mortgage, the appellant was therefore entitled to a declaration that such a mortgage did not bind his interest in the property. Is the position altered by the passing of the decree? We think not. The decree against the father does not of its own force create a mortgage binding on the sons interest. The security of the creditor is not enlarged by the passing of the decree. In spite of the passing of the preliminary or final decree for sale against the father, the mortgage will not as before, bind the sons interest in the property, and the son will be entitled to ask for a declaration that his interest has not been alienated either by the mortgage or by the decree. 11. It follows that in the absence of a finding on the question of legal necessity, this appeal cannot be completely disposed of. The Courts below have not recorded any finding on this issue. Normally, we would have remanded the matter to the High Court for a finding on the point. But considering that the litigation is now pending for the last 14 years and the sale of the property has been improperly stayed for a long time, we have thought it fit to examine for ourselves the evidence on the record with regard to this issue. Murari Lal took a loan of Rs. 75,000/ - from the mortgagee. Out of this sum, Rs. 31,000/- was borrowed for discharging antecedent debts. It is not disputed that the mortgage to the extent it secures repayment of Rs. 31.000/- binds the appellants interest in the property. Rs. 3000/- was paid to Murari for meeting the stamp and other expenses in connection with the mortgage. The balance sum of Rs. 41,000/- was paid to him by cheque. In the mortgage deed, Murari Lal stated that he would spend this sum of Rs. 41.000/- in his business, for the maintenance of the family and for the education of the appellant. Counsel for the appellant submitted that Murari Lal did not carry on any business and the mortgagees case that the loan was taken partly for purposes of business should not be accepted. The testimony of Baburam, Manohar and Sukhbashi Lal shows that Murari Lal was carrying on business in silver and gold lace. Murari Lal denied that he ever carried on business after his fathers death which took place in 1906. The appellant, Sitaram, Ram Sarup and Prabhu Dayal support him. We are unable to accept the testimony of Murari Lal and other witnesses that Murari Lal did not carry on any business since 1906.The deed of partition between Murari and Ram Sarup dated December 14, 1939 recited that Murari Lal was by occupation a sarafa and rentier. The mortgage deed dated June 7, 1949 stated that the occupation of Murari Lal was silver and gold business. The endorsement of the Sub Registrar on this deed described him as saraf by occupation. Counsel for the appellant submitted that there is a material discrepancy between the oral evidence and the recitals, in the mortgage deed. The oral evidence shows that Murari Lal was carrying on business in gold silver lace whereas the mortgage deed shows that he was carrying on business in gold and silver. We think that the description of saraf or gold and silver business in the mortgage deed was used loosely to indicate business in silver and gold lace. If Murari gold and silver, it was not necessary for the plaintiff to set up the case of that he was carrying on a business in silver and gold lace. If Murari Lal was carrying on a business, it is not disputed that the business was a joint family business. The loan of Rs.75,000/- was thus taken by Murari Lal partly for payment of antecedent debts and partly for purpose of this family business and other legal necessities. The mortgage in its entirety bound the property including the interest of the appellant therein.
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0
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paid to him by cheque. In the mortgage deed, Murari Lal stated that he would spend this sum of Rs. 41.000/- in his business, for the maintenance of the family and for the education of the appellant. Counsel for the appellant submitted that Murari Lal did not carry on any business and the mortgagees case that the loan was taken partly for purposes of business should not be accepted. The testimony of Baburam, Manohar and Sukhbashi Lal shows that Murari Lal was carrying on business in silver and gold lace. Murari Lal denied that he ever carried on business after his fathers death which took place in 1906. The appellant, Sitaram, Ram Sarup and Prabhu Dayal support him. We are unable to accept the testimony of Murari Lal and other witnesses that Murari Lal did not carry on any business since 1906.The deed of partition between Murari and Ram Sarup dated December 14, 1939 recited that Murari Lal was by occupation a sarafa and rentier. The mortgage deed dated June 7, 1949 stated that the occupation of Murari Lal was silver and gold business. The endorsement of the Sub Registrar on this deed described him as saraf by occupation. Counsel for the appellant submitted that there is a material discrepancy between the oral evidence and the recitals, in the mortgage deed. The oral evidence shows that Murari Lal was carrying on business in gold silver lace whereas the mortgage deed shows that he was carrying on business in gold and silver. We think that the description of saraf or gold and silver business in the mortgage deed was used loosely to indicate business in silver and gold lace. If Murari gold and silver, it was not necessary for the plaintiff to set up the case of that he was carrying on a business in silver and gold lace. If Murari Lal was carrying on a business, it is not disputed that the business was a joint family business. The loan of Rs.75,000/- was thus taken by Murari Lal partly for payment of antecedent debts and partly for purpose of this family business and other legal necessities. The mortgage in its entirety bound the property including the interest of the appellant thereinIs the position altered by the passing of the decree? We think not. The decree against the father does not of its own force create a mortgage binding on the sons interest. The security of the creditor is not enlarged by the passing of the decree. In spite of the passing of the preliminary or final decree for sale against the father, the mortgage will not as before, bind the sons interest in the property, and the son will be entitled to ask for a declaration that his interest has not been alienated either by the mortgage or by the decree11. It follows that in the absence of a finding on the question of legal necessity, this appeal cannot be completely disposed of. The Courts below have not recorded any finding on this issue.Normally, we would have remanded the matter to the High Court for a finding on the point. But considering that the litigation is now pending for the last 14 years and the sale of the property has been improperly stayed for a long time, we have thought it fit to examine for ourselves the evidence on the record with regard to this issue. Murari Lal took a loan of Rs. 75,000/from the mortgagee. Out of this sum, Rs. 31,000/was borrowed for discharging antecedent debts. It is not disputed that the mortgage to the extent it secures repayment of Rs. 31.000/binds the appellants interest in the property. Rs. 3000/was paid to Murari for meeting the stamp and other expenses in connection with the mortgage. The balance sum of Rs. 41,000/was paid to him by cheque. In the mortgage deed, Murari Lal stated that he would spend this sum of Rs. 41.000/in his business, for the maintenance of the family and for the education of the appellant. Counsel for the appellant submitted that Murari Lal did not carry on any business and the mortgagees case that the loan was taken partly for purposes of business should not be accepted. The testimony of Baburam, Manohar and Sukhbashi Lal shows that Murari Lal was carrying on business in silver and gold lace. Murari Lal denied that he ever carried on business after his fathers death which took place in 1906. The appellant, Sitaram, Ram Sarup and Prabhu Dayal support him. We are unable to accept the testimony of Murari Lal and other witnesses that Murari Lal did not carry on any business since 1906.The deed of partition between Murari and Ram Sarup dated December 14, 1939 recited that Murari Lal was by occupation a sarafa and rentier. The mortgage deed dated June 7, 1949 stated that the occupation of Murari Lal was silver and gold business. The endorsement of the Sub Registrar on this deed described him as saraf by occupation. Counsel for the appellant submitted that there is a material discrepancy between the oral evidence and the recitals, in the mortgage deed. The oral evidence shows that Murari Lal was carrying on business in gold silver lace whereas the mortgage deed shows that he was carrying on business in gold and silver. We think that the description of saraf or gold and silver business in the mortgage deed was used loosely to indicate business in silver and gold lace. If Murari gold and silver, it was not necessary for the plaintiff to set up the case of that he was carrying on a business in silver and gold lace. If Murari Lal was carrying on a business, it is not disputed that the business was a joint family business. The loan of Rs.75,000/was thus taken by Murari Lal partly for payment of antecedent debts and partly for purpose of this family business and other legal necessities. The mortgage in its entirety bound the property including the interest of the appellant
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State Trade Corporation of India Ltd. & Another Vs. The State of Mysore & Another | Sales Tax Act. 1956 had come into force. During that year, therefore, the State could not tax a sale which was an inter-State sale as defined in S.3 of the Central Sales Tax Act. That section defined an inter-State sale in two ways, one of which is in these terms: A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase- (a) occasions the movement of goods from one State to another. The petitioners contend that the disputed sales were of this variety and the respondents, therefore, could not-Tax them. 9. The question then is did the sales occasion the movement of cement from another State into Mysore within the meaning of the definition ?In Tata Iron and Steel Co. Ltd. v. S.R. Sarkar, 1961-1 SCR 379 at p.391: (AIR 1961 SC 65 at p.72) it was held that a sale occasions the movement of goods from one State to another within S.3 (a) of the Central Sales Tax Act, when the movement is the result of a covenant or incident of the contract of sale. That the cement concerned in the disputed sales was actually moved from another State into Mysore is not denied. The respondents only contend that the movement was not the result of a covenant in or an incident of the contract of sale. 10. The result of this appeal will therefore turn on whether the movement of cement from another State into Mysore was the result of a covenant in the contract of sale or an incident of such contract. This question will depend on the contract and in order properly to appreciate the contract the procedure of the sales, as to which there is no dispute, has to be referred to. Now, at the relevant time cement could be purchased only under a permit issued by the Government and on the terms contained in it. This, it seems, was the result of certain statutory provisions. All the sales with which we are concerned were under such permits. Unfortunately the petitioners did not disclose in their petitions any specimen copy of a permit. As however the existence of the permits was not in dispute and had been mentioned in the petitions the petitioners were allowed at the hearing to produce a specimen copy of a permit which was accepted by the respondents as a correct specimen. It appears from the specimen produced that a cement Factory which was required to supply the cement covered by the permit was named in it. We are concerned with sales in which the permits required supplies to be made from factories outside Mysore. These permits were issued to the purchases and the supplier named in them was the Marketing Company. On receipt of the permit the purchaser placed an order with the Marketing Company and later a firm contract with it was made. 11. In making the orders of assessment, the Taxing Officer observed that the firm contracts did not provide for any supplies being made from any particular factory and the supplies had actually been made from factories outside the State of Mysore only to suit the convenience of the supplier, the Marketing Company, and not because of any covenant in the contracts. It is true that the written contracts did not themselves contain any covenant that the supply had to be made from any particular factory but it seems to us that the agreement between the parties was not fully set out in them. In any case each contract was subject to the terms of the permit to which it expressly referred. As it is not in dispute that the sale could only be under a permit and on the terms contained in it, a contract has to be read as subject to it. Since the permits with which we are concerned provided that the supply had to be made from one or other factory situate outside Mysore, the contracts must be deemed to have contained a covenant that the goods would be supplied in Mysore from a place situate outside its borders. A sale under such a contract would clearly be an inter-State sale as defined in S.3 (a) of the Central Sales Tax Act. In view of the provisions of the Constitution and the Central Sales Tax Act earlier referred to a State could not impose a tax on such a sale. Therefore it seems to us that the petitions should succeed. 12. It was however said that the petitions were incompetent in view of our decision in Smt. Ujjam Bai v. State of Uttar Pradesh, W.P. No. 79 of 1959: (AIR 1962 SC 1621 ) inasmuch as the Taxing officers under the Mysore Acts had jurisdiction to decide whether a particular sale was an inter-State sale or not and any error committed by them as quasi-judicial tribunals in exercise of such jurisdiction did not offend any fundamental right. But we think that that case is clearly distinguishable. Das J. there stated that if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing an error as to a collateral fact and the resultant action threaten or violates a fundamental right, the question of enforcement of that right arises and a petition under Art. 32 will lie. He also said that where a statute is intra-vires but the action taken is without jurisdiction, then a petition under Art. 32 would be competent. That is the case here. There is no dispute that the Taxing Officer had no jurisdiction to tax inter-State sales, there being a constitutional prohibition against a State taxing them. He could not give himself jurisdiction to do so by deciding a collateral fact wrongly. That is what he seems to have done here. Therefore we think the decision in Ujjam Bais case, W. P. No. 79 of 1959: (AIR 1962 SC 1621 ) is not applicable to the present case and the petitions are fully competent. | 1[ds]All the sales with which we are concerned were under such permits. Unfortunately the petitioners did not disclose in their petitions any specimen copy of a permit. As however the existence of the permits was not in dispute and had been mentioned in the petitions the petitioners were allowed at the hearing to produce a specimen copy of a permit which was accepted by the respondents as a correct specimen. It appears from the specimen produced that a cement Factory which was required to supply the cement covered by the permit was named in it. We are concerned with sales in which the permits required supplies to be made from factories outside Mysore. These permits were issued to the purchases and the supplier named in them was the Marketing Company. On receipt of the permit the purchaser placed an order with the Marketing Company and later a firm contract with it was made11. In making the orders of assessment, the Taxing Officer observed that the firm contracts did not provide for any supplies being made from any particular factory and the supplies had actually been made from factories outside the State of Mysore only to suit the convenience of the supplier, the Marketing Company, and not because of any covenant in the contracts. It is true that the written contracts did not themselves contain any covenant that the supply had to be made from any particular factory but it seems to us that the agreement between the parties was not fully set out in them. In any case each contract was subject to the terms of the permit to which it expressly referred. As it is not in dispute that the sale could only be under a permit and on the terms contained in it, a contract has to be read as subject to it. Since the permits with which we are concerned provided that the supply had to be made from one or other factory situate outside Mysore, the contracts must be deemed to have contained a covenant that the goods would be supplied in Mysore from a place situate outside its borders. A sale under such a contract would clearly be an inter-State sale as defined in S.3 (a) of the Central Sales Tax Act. In view of the provisions of the Constitution and the Central Sales Tax Act earlier referred to a State could not impose a tax on such a sale. Therefore it seems to us that the petitions should succeed12. It was however said that the petitions were incompetent in view of our decision in Smt. Ujjam Bai v. State of Uttar Pradesh, W.P. No. 79 of 1959: (AIR 1962 SC 1621 ) inasmuch as the Taxing officers under the Mysore Acts had jurisdiction to decide whether a particular sale was an inter-State sale or not and any error committed by them as quasi-judicial tribunals in exercise of such jurisdiction did not offend any fundamental right. But we think that that case is clearly distinguishable. Das J. there stated that if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing an error as to a collateral fact and the resultant action threaten or violates a fundamental right, the question of enforcement of that right arises and a petition under Art. 32 will lie. He also said that where a statute is intra-vires but the action taken is without jurisdiction, then a petition under Art. 32 would be competent. That is the case here. There is no dispute that the Taxing Officer had no jurisdiction to tax inter-State sales, there being a constitutional prohibition against a State taxing them. He could not give himself jurisdiction to do so by deciding a collateral fact wrongly. That is what he seems to have done here. Therefore we think the decision in Ujjam Bais case, W. P. No. 79 of 1959: (AIR 1962 SC 1621 ) is not applicable to the present case and the petitions are fully competent8. The whole of the assessment year 1957-58 was after S.3 of the Central Sales Tax Act. 1956 had come into force. During that year, therefore, the State could not tax a sale which was an inter-State sale as defined in S.3 of the Central Sales Tax Act. That section defined an inter-State sale in two ways, one of which is in these terms: A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase- (a) occasions the movement of goods from one State to another. The petitioners contend that the disputed sales were of this variety and the respondents, therefore, could not-Tax them11. In making the orders of assessment, the Taxing Officer observed that the firm contracts did not provide for any supplies being made from any particular factory and the supplies had actually been made from factories outside the State of Mysore only to suit the convenience of the supplier, the Marketing Company, and not because of any covenant in the contracts. It is true that the written contracts did not themselves contain any covenant that the supply had to be made from any particular factory but it seems to us that the agreement between the parties was not fully set out in them. In any case each contract was subject to the terms of the permit to which it expressly referred. As it is not in dispute that the sale could only be under a permit and on the terms contained in it, a contract has to be read as subject to it. Since the permits with which we are concerned provided that the supply had to be made from one or other factory situate outside Mysore, the contracts must be deemed to have contained a covenant that the goods would be supplied in Mysore from a place situate outside its borders. A sale under such a contract would clearly be an inter-State sale as defined in S.3 (a) of the Central Sales Tax Act. In view of the provisions of the Constitution and the Central Sales Tax Act earlier referred to a State could not impose a tax on such a sale. Therefore it seems to us that the petitions should succeed12. It was however said that the petitions were incompetent in view of our decision in Smt. Ujjam Bai v. State of Uttar Pradesh, W.P. No. 79 of 1959: (AIR 1962 SC 1621 ) inasmuch as the Taxing officers under the Mysore Acts had jurisdiction to decide whether a particular sale was an inter-State sale or not and any error committed by them as quasi-judicial tribunals in exercise of such jurisdiction did not offend any fundamental right. But we think that that case is clearly distinguishable. Das J. there stated that if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing an error as to a collateral fact and the resultant action threaten or violates a fundamental right, the question of enforcement of that right arises and a petition under Art. 32 will lie. He also said that where a statute is intra-vires but the action taken is without jurisdiction, then a petition under Art. 32 would be competent. That is the case here. There is no dispute that the Taxing Officer had no jurisdiction to tax inter-State sales, there being a constitutional prohibition against a State taxing them. He could not give himself jurisdiction to do so by deciding a collateral fact wrongly. That is what he seems to have done here. Therefore we think the decision in Ujjam Bais case, W. P. No. 79 of 1959: (AIR 1962 SC 1621 ) is not applicable to the present case and the petitions are fully | 1 | 1,835 | 1,390 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
Sales Tax Act. 1956 had come into force. During that year, therefore, the State could not tax a sale which was an inter-State sale as defined in S.3 of the Central Sales Tax Act. That section defined an inter-State sale in two ways, one of which is in these terms: A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase- (a) occasions the movement of goods from one State to another. The petitioners contend that the disputed sales were of this variety and the respondents, therefore, could not-Tax them. 9. The question then is did the sales occasion the movement of cement from another State into Mysore within the meaning of the definition ?In Tata Iron and Steel Co. Ltd. v. S.R. Sarkar, 1961-1 SCR 379 at p.391: (AIR 1961 SC 65 at p.72) it was held that a sale occasions the movement of goods from one State to another within S.3 (a) of the Central Sales Tax Act, when the movement is the result of a covenant or incident of the contract of sale. That the cement concerned in the disputed sales was actually moved from another State into Mysore is not denied. The respondents only contend that the movement was not the result of a covenant in or an incident of the contract of sale. 10. The result of this appeal will therefore turn on whether the movement of cement from another State into Mysore was the result of a covenant in the contract of sale or an incident of such contract. This question will depend on the contract and in order properly to appreciate the contract the procedure of the sales, as to which there is no dispute, has to be referred to. Now, at the relevant time cement could be purchased only under a permit issued by the Government and on the terms contained in it. This, it seems, was the result of certain statutory provisions. All the sales with which we are concerned were under such permits. Unfortunately the petitioners did not disclose in their petitions any specimen copy of a permit. As however the existence of the permits was not in dispute and had been mentioned in the petitions the petitioners were allowed at the hearing to produce a specimen copy of a permit which was accepted by the respondents as a correct specimen. It appears from the specimen produced that a cement Factory which was required to supply the cement covered by the permit was named in it. We are concerned with sales in which the permits required supplies to be made from factories outside Mysore. These permits were issued to the purchases and the supplier named in them was the Marketing Company. On receipt of the permit the purchaser placed an order with the Marketing Company and later a firm contract with it was made. 11. In making the orders of assessment, the Taxing Officer observed that the firm contracts did not provide for any supplies being made from any particular factory and the supplies had actually been made from factories outside the State of Mysore only to suit the convenience of the supplier, the Marketing Company, and not because of any covenant in the contracts. It is true that the written contracts did not themselves contain any covenant that the supply had to be made from any particular factory but it seems to us that the agreement between the parties was not fully set out in them. In any case each contract was subject to the terms of the permit to which it expressly referred. As it is not in dispute that the sale could only be under a permit and on the terms contained in it, a contract has to be read as subject to it. Since the permits with which we are concerned provided that the supply had to be made from one or other factory situate outside Mysore, the contracts must be deemed to have contained a covenant that the goods would be supplied in Mysore from a place situate outside its borders. A sale under such a contract would clearly be an inter-State sale as defined in S.3 (a) of the Central Sales Tax Act. In view of the provisions of the Constitution and the Central Sales Tax Act earlier referred to a State could not impose a tax on such a sale. Therefore it seems to us that the petitions should succeed. 12. It was however said that the petitions were incompetent in view of our decision in Smt. Ujjam Bai v. State of Uttar Pradesh, W.P. No. 79 of 1959: (AIR 1962 SC 1621 ) inasmuch as the Taxing officers under the Mysore Acts had jurisdiction to decide whether a particular sale was an inter-State sale or not and any error committed by them as quasi-judicial tribunals in exercise of such jurisdiction did not offend any fundamental right. But we think that that case is clearly distinguishable. Das J. there stated that if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing an error as to a collateral fact and the resultant action threaten or violates a fundamental right, the question of enforcement of that right arises and a petition under Art. 32 will lie. He also said that where a statute is intra-vires but the action taken is without jurisdiction, then a petition under Art. 32 would be competent. That is the case here. There is no dispute that the Taxing Officer had no jurisdiction to tax inter-State sales, there being a constitutional prohibition against a State taxing them. He could not give himself jurisdiction to do so by deciding a collateral fact wrongly. That is what he seems to have done here. Therefore we think the decision in Ujjam Bais case, W. P. No. 79 of 1959: (AIR 1962 SC 1621 ) is not applicable to the present case and the petitions are fully competent.
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on the terms contained in it, a contract has to be read as subject to it. Since the permits with which we are concerned provided that the supply had to be made from one or other factory situate outside Mysore, the contracts must be deemed to have contained a covenant that the goods would be supplied in Mysore from a place situate outside its borders. A sale under such a contract would clearly be an inter-State sale as defined in S.3 (a) of the Central Sales Tax Act. In view of the provisions of the Constitution and the Central Sales Tax Act earlier referred to a State could not impose a tax on such a sale. Therefore it seems to us that the petitions should succeed12. It was however said that the petitions were incompetent in view of our decision in Smt. Ujjam Bai v. State of Uttar Pradesh, W.P. No. 79 of 1959: (AIR 1962 SC 1621 ) inasmuch as the Taxing officers under the Mysore Acts had jurisdiction to decide whether a particular sale was an inter-State sale or not and any error committed by them as quasi-judicial tribunals in exercise of such jurisdiction did not offend any fundamental right. But we think that that case is clearly distinguishable. Das J. there stated that if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing an error as to a collateral fact and the resultant action threaten or violates a fundamental right, the question of enforcement of that right arises and a petition under Art. 32 will lie. He also said that where a statute is intra-vires but the action taken is without jurisdiction, then a petition under Art. 32 would be competent. That is the case here. There is no dispute that the Taxing Officer had no jurisdiction to tax inter-State sales, there being a constitutional prohibition against a State taxing them. He could not give himself jurisdiction to do so by deciding a collateral fact wrongly. That is what he seems to have done here. Therefore we think the decision in Ujjam Bais case, W. P. No. 79 of 1959: (AIR 1962 SC 1621 ) is not applicable to the present case and the petitions are fully competent8. The whole of the assessment year 1957-58 was after S.3 of the Central Sales Tax Act. 1956 had come into force. During that year, therefore, the State could not tax a sale which was an inter-State sale as defined in S.3 of the Central Sales Tax Act. That section defined an inter-State sale in two ways, one of which is in these terms: A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase- (a) occasions the movement of goods from one State to another. The petitioners contend that the disputed sales were of this variety and the respondents, therefore, could not-Tax them11. In making the orders of assessment, the Taxing Officer observed that the firm contracts did not provide for any supplies being made from any particular factory and the supplies had actually been made from factories outside the State of Mysore only to suit the convenience of the supplier, the Marketing Company, and not because of any covenant in the contracts. It is true that the written contracts did not themselves contain any covenant that the supply had to be made from any particular factory but it seems to us that the agreement between the parties was not fully set out in them. In any case each contract was subject to the terms of the permit to which it expressly referred. As it is not in dispute that the sale could only be under a permit and on the terms contained in it, a contract has to be read as subject to it. Since the permits with which we are concerned provided that the supply had to be made from one or other factory situate outside Mysore, the contracts must be deemed to have contained a covenant that the goods would be supplied in Mysore from a place situate outside its borders. A sale under such a contract would clearly be an inter-State sale as defined in S.3 (a) of the Central Sales Tax Act. In view of the provisions of the Constitution and the Central Sales Tax Act earlier referred to a State could not impose a tax on such a sale. Therefore it seems to us that the petitions should succeed12. It was however said that the petitions were incompetent in view of our decision in Smt. Ujjam Bai v. State of Uttar Pradesh, W.P. No. 79 of 1959: (AIR 1962 SC 1621 ) inasmuch as the Taxing officers under the Mysore Acts had jurisdiction to decide whether a particular sale was an inter-State sale or not and any error committed by them as quasi-judicial tribunals in exercise of such jurisdiction did not offend any fundamental right. But we think that that case is clearly distinguishable. Das J. there stated that if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing an error as to a collateral fact and the resultant action threaten or violates a fundamental right, the question of enforcement of that right arises and a petition under Art. 32 will lie. He also said that where a statute is intra-vires but the action taken is without jurisdiction, then a petition under Art. 32 would be competent. That is the case here. There is no dispute that the Taxing Officer had no jurisdiction to tax inter-State sales, there being a constitutional prohibition against a State taxing them. He could not give himself jurisdiction to do so by deciding a collateral fact wrongly. That is what he seems to have done here. Therefore we think the decision in Ujjam Bais case, W. P. No. 79 of 1959: (AIR 1962 SC 1621 ) is not applicable to the present case and the petitions are fully
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Ozone Land Agro Private Limited Vs. State of Maharashtra & Others | hesitation in coming to the conclusion that the issue involved in this case is no loner res-integra and is squarely covered by the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (2014) 3 SCC 430 ) (supra).11. For the aforesaid reasons, the entires made in the revenue record by the revenue authorities on the basis of notices which were issued under section 35(3) of the Indian Forest Act are set aside. It is clarified that though these notices were issued under section 35(3) since there being no final Notification issued under section 35(1), provisions of section 2(f)(ii) and 2(f)(iii) of the Maharashtra Private Forests (Acquisition) Act, 1975 would not apply to the facts of the present case and these lands, therefore, would not be deemed to be the forest lands, unless the procedure prescribed under the Act is followed which, admittedly, has not been followed in this case. It has to be remembered that the State has a right to acquire the land or declare that the land vests in the State Government. Such a right can be exercised only after the procedure which is prescribed under the Act is followed. It is no doubt true that the question of environment is a burning issue and has to be taken into consideration. However, at the same time, rights of the citizens cannot be taken away without following the due process of law. In the present case, after 1956, no steps have been taken by the State Government and, therefore, we are of the view that citizens cannot be deprived of the rights in respect of the property owned by them.11. In the present case also, the facts are almost identical. Notices under section 35(3) had been issued sometime in 50s. There is no proof of service. In the Affidavit-in-reply which has been filed by Respondent No.5 Conservator of Forest, it has been in terms stated in various paragraphs that notices have been issued but nowhere it is stated that the notices have been served on the owners of the land.12. Respondents have relied on the Entries made in what is called Golden Register in support of their contention that the notices have been issued. However in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), mere issuance of notice is not sufficient and therefore merely by issuance of notice, the land could not be said to be deemed forest under Section 2(f)(iii).13. The Apex Court in its judgment in Godrej and Boyce Manufacturing Company Limited (supra) while overruling the judgment in Chintamani Gajanan Velkar vs State of Maharashtra and Others (2000) 3 SCC 143 ) has observed that this fine distinction which existed on proper reading and analysis of Section 35 was lost sight of by the Bombay High Court and the Apex Court in its earlier judgment in Chintamani (supra).14. This being the legal position, when the matter was filed before this Court, the issue which has now been settled was not settled and, therefore, Division Bench of this Court relegated the Petitioners to exhaust the alternative remedy of filing the appeal before the Sub-Divisional Officer since the question whether notice was issued or not was a disputed question of fact.15. After the judgment was delivered in Godrej and Boyce Manufacturing Company Limited (supra) by the Apex Court and in Satelite Developers Limited (supra) by this Court, Petitioners have now approached this Court again, in view of the settled position in law which position is settled after the Division Bench of this Court had directed the Petitioners to file an appeal. It is, therefore, rightly submitted by the learned Senior Counsel appearing on behalf of the Petitioners that in view of the settled position in law which was settled after the appeal was filed before the Sub-Divisional Officer, Petitioners, again, have a right to approach this Court and seek an appropriate order and direction for quashing the said Mutation Entries. The learned Senior Counsel appearing on behalf of the Petitioners, in our view, has rightly submitted that in view of the stand which has been now taken by the State Government in their affidavit-in-reply, it appears that despite the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), State is still sticking to their old stand and, therefore, no fruitful purpose would be served in pursuing the appeal which is pending before the Sub-Divisional Officer.16. We find considerable force in the submissions made by the learned Senior Counsel appearing on behalf of the Petitioners. Normally, in such cases, when the Petitioners had approached this Court and this Court had relegated the Petitioners to exhaust the alternative remedy, this Court would not have entertained the Petition again and would have asked the Petitioners to exhaust that remedy first as per the directions which were given in the judgment of this Court dated 18/02/2010 passed in Writ Petition No.283 of 2009. However, in the peculiar facts and circumstances of this case and more particularly in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) which has finally settled the issue, we find that it would be futile to again ask the Petitioners to go back to the Sub-Divisional Officer, who, apparently, in view of the affidavit-in-reply filed by the Respondents, would continue to take the same stand. We are of the view that, normally, State is expected to take a fair and reasonable stand and follow the law which is laid down by the Apex Court which is binding on all the parties in the country. However, we are surprised by the fact that same stand which was earlier taken in Chintamani is continued to be taken here in the reply filed by the Respondents to this Petition.17. Both the questions in para 4 above are accordingly answered in the negative. | 1[ds]11. In the present case also, the facts are almost identical. Notices under section 35(3) had been issued sometime in 50s. There is no proof of service. In thewhich has been filed by Respondent No.5Conservator of Forest, it has been in terms stated in various paragraphs that notices have been issued but nowhere it is stated that the notices have been served on the owners of the land.12. Respondents have relied on the Entries made in what is called Golden Register in support of their contention that the notices have been issued. However in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), mere issuance of notice is not sufficient and therefore merely by issuance of notice, the land could not be said to be deemed forest under Section 2(f)(iii).In the present case also, the facts are almost identical. Notices under section 35(3) had been issued sometime in 50s. There is no proof of service. In thewhich has been filed by Respondent No.5r of Forest, it has been in terms stated in various paragraphs that notices have been issued but nowhere it is stated that the notices have been served on the owners of the land.The Apex Court in its judgment in Godrej and Boyce Manufacturing Company Limited (supra) while overruling the judgment in Chintamani Gajanan Velkar vs State of Maharashtra and Others (2000) 3 SCC 143 ) has observed that this fine distinction which existed on proper reading and analysis of Section 35 was lost sight of by the Bombay High Court and the Apex Court in its earlier judgment in Chintamani (supra).14. This being the legal position, when the matter was filed before this Court, the issue which has now been settled was not settled and, therefore, Division Bench of this Court relegated the Petitioners to exhaust the alternative remedy of filing the appeal before theOfficer since the question whether notice was issued or not was a disputed question of fact.15. After the judgment was delivered in Godrej and Boyce Manufacturing Company Limited (supra) by the Apex Court and in Satelite Developers Limited (supra) by this Court, Petitioners have now approached this Court again, in view of the settled position in law which position is settled after the Division Bench of this Court had directed the Petitioners to file an appeal. It is, therefore, rightly submitted by the learned Senior Counsel appearing on behalf of the Petitioners that in view of the settled position in law which was settled after the appeal was filed before theOfficer, Petitioners, again, have a right to approach this Court and seek an appropriate order and direction for quashing the said Mutation Entries. The learned Senior Counsel appearing on behalf of the Petitioners, in our view, has rightly submitted that in view of the stand which has been now taken by the State Government in theirit appears that despite the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), State is still sticking to their old stand and, therefore, no fruitful purpose would be served in pursuing the appeal which is pending before theOfficer.16. We find considerable force in the submissions made by the learned Senior Counsel appearing on behalf of the Petitioners. Normally, in such cases, when the Petitioners had approached this Court and this Court had relegated the Petitioners to exhaust the alternative remedy, this Court would not have entertained the Petition again and would have asked the Petitioners to exhaust that remedy first as per the directions which were given in the judgment of this Court dated 18/02/2010 passed in Writ Petition No.283 of 2009. However, in the peculiar facts and circumstances of this case and more particularly in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) which has finally settled the issue, we find that it would be futile to again ask the Petitioners to go back to theOfficer, who, apparently, in view of thefiled by the Respondents, would continue to take the same stand. We are of the view that, normally, State is expected to take a fair and reasonable stand and follow the law which is laid down by the Apex Court which is binding on all the parties in the country. However, we are surprised by the fact that same stand which was earlier taken in Chintamani is continued to be taken here in the reply filed by the Respondents to this Petition.17. Both the questions in para 4 above are accordingly answered in the negative. | 1 | 3,240 | 869 | ### Instruction:
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hesitation in coming to the conclusion that the issue involved in this case is no loner res-integra and is squarely covered by the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (2014) 3 SCC 430 ) (supra).11. For the aforesaid reasons, the entires made in the revenue record by the revenue authorities on the basis of notices which were issued under section 35(3) of the Indian Forest Act are set aside. It is clarified that though these notices were issued under section 35(3) since there being no final Notification issued under section 35(1), provisions of section 2(f)(ii) and 2(f)(iii) of the Maharashtra Private Forests (Acquisition) Act, 1975 would not apply to the facts of the present case and these lands, therefore, would not be deemed to be the forest lands, unless the procedure prescribed under the Act is followed which, admittedly, has not been followed in this case. It has to be remembered that the State has a right to acquire the land or declare that the land vests in the State Government. Such a right can be exercised only after the procedure which is prescribed under the Act is followed. It is no doubt true that the question of environment is a burning issue and has to be taken into consideration. However, at the same time, rights of the citizens cannot be taken away without following the due process of law. In the present case, after 1956, no steps have been taken by the State Government and, therefore, we are of the view that citizens cannot be deprived of the rights in respect of the property owned by them.11. In the present case also, the facts are almost identical. Notices under section 35(3) had been issued sometime in 50s. There is no proof of service. In the Affidavit-in-reply which has been filed by Respondent No.5 Conservator of Forest, it has been in terms stated in various paragraphs that notices have been issued but nowhere it is stated that the notices have been served on the owners of the land.12. Respondents have relied on the Entries made in what is called Golden Register in support of their contention that the notices have been issued. However in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), mere issuance of notice is not sufficient and therefore merely by issuance of notice, the land could not be said to be deemed forest under Section 2(f)(iii).13. The Apex Court in its judgment in Godrej and Boyce Manufacturing Company Limited (supra) while overruling the judgment in Chintamani Gajanan Velkar vs State of Maharashtra and Others (2000) 3 SCC 143 ) has observed that this fine distinction which existed on proper reading and analysis of Section 35 was lost sight of by the Bombay High Court and the Apex Court in its earlier judgment in Chintamani (supra).14. This being the legal position, when the matter was filed before this Court, the issue which has now been settled was not settled and, therefore, Division Bench of this Court relegated the Petitioners to exhaust the alternative remedy of filing the appeal before the Sub-Divisional Officer since the question whether notice was issued or not was a disputed question of fact.15. After the judgment was delivered in Godrej and Boyce Manufacturing Company Limited (supra) by the Apex Court and in Satelite Developers Limited (supra) by this Court, Petitioners have now approached this Court again, in view of the settled position in law which position is settled after the Division Bench of this Court had directed the Petitioners to file an appeal. It is, therefore, rightly submitted by the learned Senior Counsel appearing on behalf of the Petitioners that in view of the settled position in law which was settled after the appeal was filed before the Sub-Divisional Officer, Petitioners, again, have a right to approach this Court and seek an appropriate order and direction for quashing the said Mutation Entries. The learned Senior Counsel appearing on behalf of the Petitioners, in our view, has rightly submitted that in view of the stand which has been now taken by the State Government in their affidavit-in-reply, it appears that despite the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), State is still sticking to their old stand and, therefore, no fruitful purpose would be served in pursuing the appeal which is pending before the Sub-Divisional Officer.16. We find considerable force in the submissions made by the learned Senior Counsel appearing on behalf of the Petitioners. Normally, in such cases, when the Petitioners had approached this Court and this Court had relegated the Petitioners to exhaust the alternative remedy, this Court would not have entertained the Petition again and would have asked the Petitioners to exhaust that remedy first as per the directions which were given in the judgment of this Court dated 18/02/2010 passed in Writ Petition No.283 of 2009. However, in the peculiar facts and circumstances of this case and more particularly in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) which has finally settled the issue, we find that it would be futile to again ask the Petitioners to go back to the Sub-Divisional Officer, who, apparently, in view of the affidavit-in-reply filed by the Respondents, would continue to take the same stand. We are of the view that, normally, State is expected to take a fair and reasonable stand and follow the law which is laid down by the Apex Court which is binding on all the parties in the country. However, we are surprised by the fact that same stand which was earlier taken in Chintamani is continued to be taken here in the reply filed by the Respondents to this Petition.17. Both the questions in para 4 above are accordingly answered in the negative.
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11. In the present case also, the facts are almost identical. Notices under section 35(3) had been issued sometime in 50s. There is no proof of service. In thewhich has been filed by Respondent No.5Conservator of Forest, it has been in terms stated in various paragraphs that notices have been issued but nowhere it is stated that the notices have been served on the owners of the land.12. Respondents have relied on the Entries made in what is called Golden Register in support of their contention that the notices have been issued. However in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), mere issuance of notice is not sufficient and therefore merely by issuance of notice, the land could not be said to be deemed forest under Section 2(f)(iii).In the present case also, the facts are almost identical. Notices under section 35(3) had been issued sometime in 50s. There is no proof of service. In thewhich has been filed by Respondent No.5r of Forest, it has been in terms stated in various paragraphs that notices have been issued but nowhere it is stated that the notices have been served on the owners of the land.The Apex Court in its judgment in Godrej and Boyce Manufacturing Company Limited (supra) while overruling the judgment in Chintamani Gajanan Velkar vs State of Maharashtra and Others (2000) 3 SCC 143 ) has observed that this fine distinction which existed on proper reading and analysis of Section 35 was lost sight of by the Bombay High Court and the Apex Court in its earlier judgment in Chintamani (supra).14. This being the legal position, when the matter was filed before this Court, the issue which has now been settled was not settled and, therefore, Division Bench of this Court relegated the Petitioners to exhaust the alternative remedy of filing the appeal before theOfficer since the question whether notice was issued or not was a disputed question of fact.15. After the judgment was delivered in Godrej and Boyce Manufacturing Company Limited (supra) by the Apex Court and in Satelite Developers Limited (supra) by this Court, Petitioners have now approached this Court again, in view of the settled position in law which position is settled after the Division Bench of this Court had directed the Petitioners to file an appeal. It is, therefore, rightly submitted by the learned Senior Counsel appearing on behalf of the Petitioners that in view of the settled position in law which was settled after the appeal was filed before theOfficer, Petitioners, again, have a right to approach this Court and seek an appropriate order and direction for quashing the said Mutation Entries. The learned Senior Counsel appearing on behalf of the Petitioners, in our view, has rightly submitted that in view of the stand which has been now taken by the State Government in theirit appears that despite the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) and of this Court in Satelite Developers Limited (supra), State is still sticking to their old stand and, therefore, no fruitful purpose would be served in pursuing the appeal which is pending before theOfficer.16. We find considerable force in the submissions made by the learned Senior Counsel appearing on behalf of the Petitioners. Normally, in such cases, when the Petitioners had approached this Court and this Court had relegated the Petitioners to exhaust the alternative remedy, this Court would not have entertained the Petition again and would have asked the Petitioners to exhaust that remedy first as per the directions which were given in the judgment of this Court dated 18/02/2010 passed in Writ Petition No.283 of 2009. However, in the peculiar facts and circumstances of this case and more particularly in view of the judgment of the Apex Court in Godrej and Boyce Manufacturing Company Limited (supra) which has finally settled the issue, we find that it would be futile to again ask the Petitioners to go back to theOfficer, who, apparently, in view of thefiled by the Respondents, would continue to take the same stand. We are of the view that, normally, State is expected to take a fair and reasonable stand and follow the law which is laid down by the Apex Court which is binding on all the parties in the country. However, we are surprised by the fact that same stand which was earlier taken in Chintamani is continued to be taken here in the reply filed by the Respondents to this Petition.17. Both the questions in para 4 above are accordingly answered in the negative.
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Commissioner of Income Tax, A.P Vs. Sirpur Paper Mills Limited | 1966, respectively. The assessee maintained a guest house at Sirpur during each of the relevant account years and spent the respective sums of Rs. 44, 428, Rs. 26, 428 and Rs. 17, 025 on maintenance of the guest house. The question arose in the assessments of the assessee for the assessment years 1965-66, 1966-67 and 1967-68, whether these amounts expended by the assessee on maintaining the guest house were allowable as permissible deductions in computing the business income of the assessee. The claim of the assessee for deduction in each of the assessment years was negatived on the ground that the expenditure was in the nature of entertainment expenditure and was hence not allowable. The Appellate Assistant Commissioner also took the same view in appeal and the matter had to be carried in further appeal to the Tribunal. Now, it appears that a similar claim for deduction in respect of expenditure incurred on maintenace of the guest house was made in the assessment year 1961-62, and it was allowed by the Tribunal in Income-tax Appeal No. 9252 of 1967-68, and on a reference made at the instance of the revenue, the High Court, in Reference Case No. 93 of 1970, had taken the view that this amount was not in the nature of entertainment expenditure so as to fall within the ambit of the proviso to section 10(2)(xv) of the Indian Income-tax Act, 1922, and was, therefore, allowable as a permissible deduction. The appeals before the Tribunal in respect of the assessment years 1965-66, 1966-67 and 1967-68, came to be heard after the decision given by it in the appeal in respect of the assessment year 1961-62, but before Reference Case No. 93 of 1970 came to be decided by the High Court. The Tribunal, following its earlier decision in the appeal in respect of the assessment year 1961-62, held in each of the appeals before it that the expenditure incurred by the assessee on the maintenance of the guest house was not in the nature of entertainment-expenditure and was hence allowable as admissible expenditure. The revenue, being aggrieved by the order of the Tribunal, applied for a reference in each assessment year and on the application of the revenue the following question of law was referred by the Tribunal for the opinion of the High Court" Whether, on the facts and in the circumstances of the case, the amount expended by the assessee for the maintenance of a guest house at Sirpur for each of the assessment years 1965-66, 1966-67 and 1967-68 is not entertainment expenditure? "58. The High Court, following its earlier decision in Reference Case No. 93 of 1970, agreed with the view taken by the Tribunal that the expenditure incurred on the maintenance of the guest house was an allowable revenue expenditure and pointed out that it was common ground between the parties that that decision covered the present case. The High Court accordingly answered this question in favour of the assessee and against the revenue. The revenue thereupon preferred Civil Appeals Nos. 885, 886 and 887 of 1974 with special leave obtained from this court.59. Now, it is obvious that the only question referred by the Tribunal in regard to the expenditure incurred by the assessee on the maintenance of the guest house was whether such expenditure is not entertainment expenditure. The question proceeded on the assumption that if it is not entertainment expenditure, it would be allowable as a permissible deduction. It was not argued by the revenue before the Tribunal that even if such expenditure is not entertainment expenditure, it would still not be allowable under section 37 sub-section(3), of the Income-tax Act, 1961, and hence no question, in general terms, was raised as to whether such expenditure was allowable as a deduction. But the question was limited only to the issue as to whether it was not entertainment expenditure. Even before the High Court the only question raised was whether the expenditure on maintenance of the guest house was not entertainment expenditure and it was common ground between the parties that the decision of the High Court in Reference Case No. 93 of 1970 in respect of the assessment year 1961-62 governed the determination of the question arising before the Tribunal. It is indeed surprising that the learned counsel appearing on behalf of the revenue did not urge before the Tribunal and even before the High Court that the decision of the High Court in Reference Case No. 93 of 1970 had no application in the present case because that was a decison given under the Indian Income-tax Act, 1922, whereas the question in the present case arose under the Income-tax Act, 1961, where the relevant provision was entirely different. We are constrained to observe that this was nothing but gross negligence on the part of the learned advocate who represented the revenue before the Tribunal and the High Court. When the only contention raised by the revenue before the Tribunal was whether the expenditure incurred by the assessee on the maintenance of the guest house was or was not entertainment expenditure and the revenue conceded before the High Court that the determination of the question before it was concluded by the decision given in Reference Case No. 93 of 1970, it is difficult to see how the revenue can now be permitted to argue that this expenditure was not allowable as a permissible deduction under section 37, sub-section (3), of the Income-tax Act, 1961. It is not an aspect of the question which can be decided as a pure point of law because section 37, sub-section (3), provides that the expenditure incurred on the maintenance of the guest house shall be allowed "only to the extent and subject to such conditions, if any, as may be prescribed " and it would, therefore, have to be ascertained whether and to what extent the conditions prescribed by the Rules were satisfied in the present case and that would involve investigation of new facts.60. | 0[ds]Now, it is obvious that the only question referred by the Tribunal in regard to the expenditure incurred by the assessee on the maintenance of the guest house was whether such expenditure is not entertainment expenditure. The question proceeded on the assumption that if it is not entertainment expenditure, it would be allowable as a permissible deduction. It was not argued by the revenue before the Tribunal that even if such expenditure is not entertainment expenditure, it would still not be allowable under section 37tax Act, 1961, and hence no question, in general terms, was raised as to whether such expenditure was allowable as a deduction. But the question was limited only to the issue as to whether it was not entertainment expenditure. Even before the High Court the only question raised was whether the expenditure on maintenance of the guest house was not entertainment expenditure and it was common ground between the parties that the decision of the High Court in Reference Case No. 93 of 1970 in respect of the assessment yeargoverned the determination of the question arising before the Tribunal. It is indeed surprising that the learned counsel appearing on behalf of the revenue did not urge before the Tribunal and even before the High Court that the decision of the High Court in Reference Case No. 93 of 1970 had no application in the present case because that was a decison given under the IndianAct, 1922, whereas the question in the present case arose under theAct, 1961, where the relevant provision was entirely different. We are constrained to observe that this was nothing but gross negligence on the part of the learned advocate who represented the revenue before the Tribunal and the High Court. When the only contention raised by the revenue before the Tribunal was whether the expenditure incurred by the assessee on the maintenance of the guest house was or was not entertainment expenditure and the revenue conceded before the High Court that the determination of the question before it was concluded by the decision given in Reference Case No. 93 of 1970, it is difficult to see how the revenue can now be permitted to argue that this expenditure was not allowable as a permissible deduction under section 37,(3), of theAct, 1961. It is not an aspect of the question which can be decided as a pure point of law because section 37,(3), provides that the expenditure incurred on the maintenance of the guest house shall be allowed "only to the extent and subject to such conditions, if any, as may be prescribed " and it would, therefore, have to be ascertained whether and to what extent the conditions prescribed by the Rules were satisfied in the present case and that would involve investigation of newapproach was rightly rejected both by the Appellate Assistant Commissioner and the Tribunal. Apart from the fact that such an approach is not justified under any provision of the Act, the view that the compensation reduce the cost of the machinery itself is of doubtful validity. The damaged machinery and the compensation together represented the total asset. The question of reduction in written down value cannot, therefore,contention then was that the amount of Rs. 7, 83, 207 represents really the business profit. We do not find any force in this contention also. To attract section 14 read with the relevant provision the income must arise from profits and gains of business. Surely, it cannot be argued and in fairness we must say that it was not argued that to set fire to the assets and get compensation from the insurance company can be said to be part of the business of the assessee. The Tribunal, in our view, rightly rejected such an56 also cannot be said to be attracted obviously because it is not an income from any other source. The hard fact is that a part of the asset was damaged by the fire for which compensation was received. The compensation, therefore, replaces the asset and is a substitute for the part of the asset damaged. It could not be doubted that if machinery was sold damaged or destroyed, the compensation received would be asset and not profit or gain in the business. The same thing applies to a part of the machinery damaged or destroyed. Merely because the assessee saved some amount out of compensation by adopting a device to repair the machinery instead of substituting it, we fail to see how that would alter, the nature of the compensation received for the part of the asset damaged. The amount left in the hands of the assessee would continue still to be compensation representing the capital and not revenue receivedIt is now well settled that if any injury is inflicted on the trading, making so to say a hole in the assessees profits and damages recovered could not be reasonably or appropriately put to any other purpose than to fill that hole, then the damages recovered would properly enter his profit and loss account for the year. On the other hand, if the capital or the assets themselves are damaged and the assessee received damages, there could be no doubt that the damages so recovered could not be entered in the profit and loss account because the destruction would be an injury inflicted not on his trading but on the capital assets of his trade making a hole in them, and the damages would, therefore, be used only to fill that hole : vide Burmah Steamship Company v. Commissioner of Inland Revenue [1930] 16 TC 67, 71 (C Sess) | 0 | 10,746 | 1,020 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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1966, respectively. The assessee maintained a guest house at Sirpur during each of the relevant account years and spent the respective sums of Rs. 44, 428, Rs. 26, 428 and Rs. 17, 025 on maintenance of the guest house. The question arose in the assessments of the assessee for the assessment years 1965-66, 1966-67 and 1967-68, whether these amounts expended by the assessee on maintaining the guest house were allowable as permissible deductions in computing the business income of the assessee. The claim of the assessee for deduction in each of the assessment years was negatived on the ground that the expenditure was in the nature of entertainment expenditure and was hence not allowable. The Appellate Assistant Commissioner also took the same view in appeal and the matter had to be carried in further appeal to the Tribunal. Now, it appears that a similar claim for deduction in respect of expenditure incurred on maintenace of the guest house was made in the assessment year 1961-62, and it was allowed by the Tribunal in Income-tax Appeal No. 9252 of 1967-68, and on a reference made at the instance of the revenue, the High Court, in Reference Case No. 93 of 1970, had taken the view that this amount was not in the nature of entertainment expenditure so as to fall within the ambit of the proviso to section 10(2)(xv) of the Indian Income-tax Act, 1922, and was, therefore, allowable as a permissible deduction. The appeals before the Tribunal in respect of the assessment years 1965-66, 1966-67 and 1967-68, came to be heard after the decision given by it in the appeal in respect of the assessment year 1961-62, but before Reference Case No. 93 of 1970 came to be decided by the High Court. The Tribunal, following its earlier decision in the appeal in respect of the assessment year 1961-62, held in each of the appeals before it that the expenditure incurred by the assessee on the maintenance of the guest house was not in the nature of entertainment-expenditure and was hence allowable as admissible expenditure. The revenue, being aggrieved by the order of the Tribunal, applied for a reference in each assessment year and on the application of the revenue the following question of law was referred by the Tribunal for the opinion of the High Court" Whether, on the facts and in the circumstances of the case, the amount expended by the assessee for the maintenance of a guest house at Sirpur for each of the assessment years 1965-66, 1966-67 and 1967-68 is not entertainment expenditure? "58. The High Court, following its earlier decision in Reference Case No. 93 of 1970, agreed with the view taken by the Tribunal that the expenditure incurred on the maintenance of the guest house was an allowable revenue expenditure and pointed out that it was common ground between the parties that that decision covered the present case. The High Court accordingly answered this question in favour of the assessee and against the revenue. The revenue thereupon preferred Civil Appeals Nos. 885, 886 and 887 of 1974 with special leave obtained from this court.59. Now, it is obvious that the only question referred by the Tribunal in regard to the expenditure incurred by the assessee on the maintenance of the guest house was whether such expenditure is not entertainment expenditure. The question proceeded on the assumption that if it is not entertainment expenditure, it would be allowable as a permissible deduction. It was not argued by the revenue before the Tribunal that even if such expenditure is not entertainment expenditure, it would still not be allowable under section 37 sub-section(3), of the Income-tax Act, 1961, and hence no question, in general terms, was raised as to whether such expenditure was allowable as a deduction. But the question was limited only to the issue as to whether it was not entertainment expenditure. Even before the High Court the only question raised was whether the expenditure on maintenance of the guest house was not entertainment expenditure and it was common ground between the parties that the decision of the High Court in Reference Case No. 93 of 1970 in respect of the assessment year 1961-62 governed the determination of the question arising before the Tribunal. It is indeed surprising that the learned counsel appearing on behalf of the revenue did not urge before the Tribunal and even before the High Court that the decision of the High Court in Reference Case No. 93 of 1970 had no application in the present case because that was a decison given under the Indian Income-tax Act, 1922, whereas the question in the present case arose under the Income-tax Act, 1961, where the relevant provision was entirely different. We are constrained to observe that this was nothing but gross negligence on the part of the learned advocate who represented the revenue before the Tribunal and the High Court. When the only contention raised by the revenue before the Tribunal was whether the expenditure incurred by the assessee on the maintenance of the guest house was or was not entertainment expenditure and the revenue conceded before the High Court that the determination of the question before it was concluded by the decision given in Reference Case No. 93 of 1970, it is difficult to see how the revenue can now be permitted to argue that this expenditure was not allowable as a permissible deduction under section 37, sub-section (3), of the Income-tax Act, 1961. It is not an aspect of the question which can be decided as a pure point of law because section 37, sub-section (3), provides that the expenditure incurred on the maintenance of the guest house shall be allowed "only to the extent and subject to such conditions, if any, as may be prescribed " and it would, therefore, have to be ascertained whether and to what extent the conditions prescribed by the Rules were satisfied in the present case and that would involve investigation of new facts.60.
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0
### Explanation:
Now, it is obvious that the only question referred by the Tribunal in regard to the expenditure incurred by the assessee on the maintenance of the guest house was whether such expenditure is not entertainment expenditure. The question proceeded on the assumption that if it is not entertainment expenditure, it would be allowable as a permissible deduction. It was not argued by the revenue before the Tribunal that even if such expenditure is not entertainment expenditure, it would still not be allowable under section 37tax Act, 1961, and hence no question, in general terms, was raised as to whether such expenditure was allowable as a deduction. But the question was limited only to the issue as to whether it was not entertainment expenditure. Even before the High Court the only question raised was whether the expenditure on maintenance of the guest house was not entertainment expenditure and it was common ground between the parties that the decision of the High Court in Reference Case No. 93 of 1970 in respect of the assessment yeargoverned the determination of the question arising before the Tribunal. It is indeed surprising that the learned counsel appearing on behalf of the revenue did not urge before the Tribunal and even before the High Court that the decision of the High Court in Reference Case No. 93 of 1970 had no application in the present case because that was a decison given under the IndianAct, 1922, whereas the question in the present case arose under theAct, 1961, where the relevant provision was entirely different. We are constrained to observe that this was nothing but gross negligence on the part of the learned advocate who represented the revenue before the Tribunal and the High Court. When the only contention raised by the revenue before the Tribunal was whether the expenditure incurred by the assessee on the maintenance of the guest house was or was not entertainment expenditure and the revenue conceded before the High Court that the determination of the question before it was concluded by the decision given in Reference Case No. 93 of 1970, it is difficult to see how the revenue can now be permitted to argue that this expenditure was not allowable as a permissible deduction under section 37,(3), of theAct, 1961. It is not an aspect of the question which can be decided as a pure point of law because section 37,(3), provides that the expenditure incurred on the maintenance of the guest house shall be allowed "only to the extent and subject to such conditions, if any, as may be prescribed " and it would, therefore, have to be ascertained whether and to what extent the conditions prescribed by the Rules were satisfied in the present case and that would involve investigation of newapproach was rightly rejected both by the Appellate Assistant Commissioner and the Tribunal. Apart from the fact that such an approach is not justified under any provision of the Act, the view that the compensation reduce the cost of the machinery itself is of doubtful validity. The damaged machinery and the compensation together represented the total asset. The question of reduction in written down value cannot, therefore,contention then was that the amount of Rs. 7, 83, 207 represents really the business profit. We do not find any force in this contention also. To attract section 14 read with the relevant provision the income must arise from profits and gains of business. Surely, it cannot be argued and in fairness we must say that it was not argued that to set fire to the assets and get compensation from the insurance company can be said to be part of the business of the assessee. The Tribunal, in our view, rightly rejected such an56 also cannot be said to be attracted obviously because it is not an income from any other source. The hard fact is that a part of the asset was damaged by the fire for which compensation was received. The compensation, therefore, replaces the asset and is a substitute for the part of the asset damaged. It could not be doubted that if machinery was sold damaged or destroyed, the compensation received would be asset and not profit or gain in the business. The same thing applies to a part of the machinery damaged or destroyed. Merely because the assessee saved some amount out of compensation by adopting a device to repair the machinery instead of substituting it, we fail to see how that would alter, the nature of the compensation received for the part of the asset damaged. The amount left in the hands of the assessee would continue still to be compensation representing the capital and not revenue receivedIt is now well settled that if any injury is inflicted on the trading, making so to say a hole in the assessees profits and damages recovered could not be reasonably or appropriately put to any other purpose than to fill that hole, then the damages recovered would properly enter his profit and loss account for the year. On the other hand, if the capital or the assets themselves are damaged and the assessee received damages, there could be no doubt that the damages so recovered could not be entered in the profit and loss account because the destruction would be an injury inflicted not on his trading but on the capital assets of his trade making a hole in them, and the damages would, therefore, be used only to fill that hole : vide Burmah Steamship Company v. Commissioner of Inland Revenue [1930] 16 TC 67, 71 (C Sess)
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Mahant Amar Parkash and Others Vs. Parkasha Nand and Others | Das was covered into appointing and in stalling the plaintiff as Mahant and therefore, the appointment of the plaintiff as Mahant of the Dera was invalid. He also argued that the plaintiff was not a chela of Mahant Krishan Das and, therefore, he could not have been validly appointed as Mahant of the Dera in question. 3. As pointed out in Mukherjeas Hindu Law of Religious and Charitable Trusts (Third Edition), succession to the office of Mahant is a matter of some complexity and the custom varies greatly from institution to institution. Generally speaking, it is pointed out, Mutts may be divided into three classes: Mourasi, Panchayati and Hakimi. "In the first, the office of the Mohunt is hereditary and devolves upon the chief disciple of the existing Mohunt who moreover usually nominates him as his successor; in the second, the office is dective, the presiding Mohunt being selected by an assembly of Mohunts. In the third, the appointment of the presiding Mohunt is vested in the ruling power or in the party who has endowed the temple". 4. It is also said "In various institutions the custom is that in order to entitle a chela to succeed, he must be appointed or nominated by the reigning Mohunt during his life time or shortly before his death and this may be done either by a written declaration or some sort of testamentary document". It is further said "Even where the Mo hunt has the power to appoint his successor, it is customary in various Mutts that such appointment should be confirmed or recognised by the members of the religious fraternity to which the deceased belonged". In Mahant Satnam Singh v. Bawan Bhagwan Singh(1), the Privy Council while noticing that succession to the office of Mahant was to be regulated by the particular custom of the Math, observed as follows:"In the normal case of the death of a Mahant, the members of the fraternity will be fully aware of the vacancy in the office, and the usual practice will be for the installation of his successor usually nominated by him, to take place on the seventeenth day after the death. On the other hand, when the Mahant resigns during his life and installs his successor on the gaddi, it is obvious that the fraternity should be made aw are of the proposed vacancy in the office and should be given the opportunity of confirming or refusing to confirm the nominee". 5. It is unnecessary for us to make any further investigation into the custom relating to the appointment of Mahant since, in the light of the submissions made before us, two questions alone arise for consideration namely whether Mahant Krishan Das was coerced into appointing the plaintiff as his successor Mahant and whether the appointment of the plaintiff was invalid on the ground of his not being a Chela of Mahant Krishan Das.On the question whether late Mahant Krishan Das was subjected to any pressure to appoint the plaintiff as Mahant, both the Courts below have concurrently found that he was subjected to no such pressure. The finding is one of fact and we are unable to see any ground justifying our interference with a concurrent finding of fact. Shri Hardyal Hardy submitted that the High Court failed t o consider the complaint said to have been made by late Mahant Krishan Das a few days after the installation of the plaintiff as Mahant in which he stated that he had been coerced into appointing the plaintiff as Mahant. Shri Hardyal Hardy also submitted that the evidence showed that the services of the Police had been requisitioned to pressurise late Mahant Krishan Das. The submission that the High Court did not consider the complaint said to have been made by late Mahant Krishan Das is without basis since we find that the High Court did refer to the complaint. The High Court confirmed the finding of the Trial Court that late Mahant Krishan Das who was previously under the influence of Amar Parkash had again come under the influence of Amar Parkash when he made the complaint. With regard to the presence of the Police at the installation ceremony we are of the view that the presence of the police, at the ceremony, far from advancing the appellants case, destroys the case that Mahant Krishan Das acted under coercion. 6. The question that remains for consideration is whether the plaintiff was the Chela of Mahant Krishan Das and whether he could be validly appointed, if he was not the Chela. In Exhibit P-7 dated 23rd July 1961 which was executed by Mahant Krishan Das and attested by all visiting Mahants the plaintiff Parkasha Nand was described as Sadaq Chela of Mahant Krishan Das. The ceremony which took place on 23rd July 1961 was described by Parkasha Nand in the following words:"The congregation sat on the durries on the first floor of the Dera. About 25 Mahants and about 30 villagers sat on those durries. Mahant Krishan Das offered a Tilak on my forehead. Mahant Bikram Dass collected turbans from the Mahants who were present there and tied five turbans on my head. Mahant Som Parkash offered me a Doshala and sugar-cakes were distributed. All these proceedings were gone through with the free and voluntary consent of late Mahant Krishan Das and no pressure was brought to bear on him. Mahant Krishan Das was not confined. Exhibits P6 to P8 were written at that time and the people who were present had affixed their signatures and thumb impressions thereon". 7. We are satisfied that late Mahant Krishan Das accepted the plaintiff as his Chela and appointed him as his successor Mahant. We may also mention here that the learned Subordinate Judge in his report mentioned that Pandit Bhagtanand who was previously a Mahant of the Dera was not a Chela of his predecessor Mahant Sunder Das and that Mahant Krishan Das himself was not a Chela of his predecessor Mahant Bhagtanand. 8. | 0[ds]On the question whether late Mahant Krishan Das was subjected to any pressure to appoint the plaintiff as Mahant, both the Courts below have concurrently found that he was subjected to no such pressure. The finding is one of fact and we are unable to see any ground justifying our interference with a concurrent finding of fact. Shri Hardyal Hardy submitted that the High Court failed t o consider the complaint said to have been made by late Mahant Krishan Das a few days after the installation of the plaintiff as Mahant in which he stated that he had been coerced into appointing the plaintiff as Mahant. Shri Hardyal Hardy also submitted that the evidence showed that the services of the Police had been requisitioned to pressurise late Mahant Krishan Das. The submission that the High Court did not consider the complaint said to have been made by late Mahant Krishan Das is without basis since we find that the High Court did refer to the complaint. The High Court confirmed the finding of the Trial Court that late Mahant Krishan Das who was previously under the influence of Amar Parkash had again come under the influence of Amar Parkash when he made the complaint. With regard to the presence of the Police at the installation ceremony we are of the view that the presence of the police, at the ceremony, far from advancing the appellants case, destroys the case that Mahant Krishan Das acted under coercionWe are satisfied that late Mahant Krishan Das accepted the plaintiff as his Chela and appointed him as his successor Mahant. We may also mention here that the learned Subordinate Judge in his report mentioned that Pandit Bhagtanand who was previously a Mahant of the Dera was not a Chela of his predecessor Mahant Sunder Das and that Mahant Krishan Das himself was not a Chela of his predecessor Mahant Bhagtanand. | 0 | 2,122 | 333 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
Das was covered into appointing and in stalling the plaintiff as Mahant and therefore, the appointment of the plaintiff as Mahant of the Dera was invalid. He also argued that the plaintiff was not a chela of Mahant Krishan Das and, therefore, he could not have been validly appointed as Mahant of the Dera in question. 3. As pointed out in Mukherjeas Hindu Law of Religious and Charitable Trusts (Third Edition), succession to the office of Mahant is a matter of some complexity and the custom varies greatly from institution to institution. Generally speaking, it is pointed out, Mutts may be divided into three classes: Mourasi, Panchayati and Hakimi. "In the first, the office of the Mohunt is hereditary and devolves upon the chief disciple of the existing Mohunt who moreover usually nominates him as his successor; in the second, the office is dective, the presiding Mohunt being selected by an assembly of Mohunts. In the third, the appointment of the presiding Mohunt is vested in the ruling power or in the party who has endowed the temple". 4. It is also said "In various institutions the custom is that in order to entitle a chela to succeed, he must be appointed or nominated by the reigning Mohunt during his life time or shortly before his death and this may be done either by a written declaration or some sort of testamentary document". It is further said "Even where the Mo hunt has the power to appoint his successor, it is customary in various Mutts that such appointment should be confirmed or recognised by the members of the religious fraternity to which the deceased belonged". In Mahant Satnam Singh v. Bawan Bhagwan Singh(1), the Privy Council while noticing that succession to the office of Mahant was to be regulated by the particular custom of the Math, observed as follows:"In the normal case of the death of a Mahant, the members of the fraternity will be fully aware of the vacancy in the office, and the usual practice will be for the installation of his successor usually nominated by him, to take place on the seventeenth day after the death. On the other hand, when the Mahant resigns during his life and installs his successor on the gaddi, it is obvious that the fraternity should be made aw are of the proposed vacancy in the office and should be given the opportunity of confirming or refusing to confirm the nominee". 5. It is unnecessary for us to make any further investigation into the custom relating to the appointment of Mahant since, in the light of the submissions made before us, two questions alone arise for consideration namely whether Mahant Krishan Das was coerced into appointing the plaintiff as his successor Mahant and whether the appointment of the plaintiff was invalid on the ground of his not being a Chela of Mahant Krishan Das.On the question whether late Mahant Krishan Das was subjected to any pressure to appoint the plaintiff as Mahant, both the Courts below have concurrently found that he was subjected to no such pressure. The finding is one of fact and we are unable to see any ground justifying our interference with a concurrent finding of fact. Shri Hardyal Hardy submitted that the High Court failed t o consider the complaint said to have been made by late Mahant Krishan Das a few days after the installation of the plaintiff as Mahant in which he stated that he had been coerced into appointing the plaintiff as Mahant. Shri Hardyal Hardy also submitted that the evidence showed that the services of the Police had been requisitioned to pressurise late Mahant Krishan Das. The submission that the High Court did not consider the complaint said to have been made by late Mahant Krishan Das is without basis since we find that the High Court did refer to the complaint. The High Court confirmed the finding of the Trial Court that late Mahant Krishan Das who was previously under the influence of Amar Parkash had again come under the influence of Amar Parkash when he made the complaint. With regard to the presence of the Police at the installation ceremony we are of the view that the presence of the police, at the ceremony, far from advancing the appellants case, destroys the case that Mahant Krishan Das acted under coercion. 6. The question that remains for consideration is whether the plaintiff was the Chela of Mahant Krishan Das and whether he could be validly appointed, if he was not the Chela. In Exhibit P-7 dated 23rd July 1961 which was executed by Mahant Krishan Das and attested by all visiting Mahants the plaintiff Parkasha Nand was described as Sadaq Chela of Mahant Krishan Das. The ceremony which took place on 23rd July 1961 was described by Parkasha Nand in the following words:"The congregation sat on the durries on the first floor of the Dera. About 25 Mahants and about 30 villagers sat on those durries. Mahant Krishan Das offered a Tilak on my forehead. Mahant Bikram Dass collected turbans from the Mahants who were present there and tied five turbans on my head. Mahant Som Parkash offered me a Doshala and sugar-cakes were distributed. All these proceedings were gone through with the free and voluntary consent of late Mahant Krishan Das and no pressure was brought to bear on him. Mahant Krishan Das was not confined. Exhibits P6 to P8 were written at that time and the people who were present had affixed their signatures and thumb impressions thereon". 7. We are satisfied that late Mahant Krishan Das accepted the plaintiff as his Chela and appointed him as his successor Mahant. We may also mention here that the learned Subordinate Judge in his report mentioned that Pandit Bhagtanand who was previously a Mahant of the Dera was not a Chela of his predecessor Mahant Sunder Das and that Mahant Krishan Das himself was not a Chela of his predecessor Mahant Bhagtanand. 8.
### Response:
0
### Explanation:
On the question whether late Mahant Krishan Das was subjected to any pressure to appoint the plaintiff as Mahant, both the Courts below have concurrently found that he was subjected to no such pressure. The finding is one of fact and we are unable to see any ground justifying our interference with a concurrent finding of fact. Shri Hardyal Hardy submitted that the High Court failed t o consider the complaint said to have been made by late Mahant Krishan Das a few days after the installation of the plaintiff as Mahant in which he stated that he had been coerced into appointing the plaintiff as Mahant. Shri Hardyal Hardy also submitted that the evidence showed that the services of the Police had been requisitioned to pressurise late Mahant Krishan Das. The submission that the High Court did not consider the complaint said to have been made by late Mahant Krishan Das is without basis since we find that the High Court did refer to the complaint. The High Court confirmed the finding of the Trial Court that late Mahant Krishan Das who was previously under the influence of Amar Parkash had again come under the influence of Amar Parkash when he made the complaint. With regard to the presence of the Police at the installation ceremony we are of the view that the presence of the police, at the ceremony, far from advancing the appellants case, destroys the case that Mahant Krishan Das acted under coercionWe are satisfied that late Mahant Krishan Das accepted the plaintiff as his Chela and appointed him as his successor Mahant. We may also mention here that the learned Subordinate Judge in his report mentioned that Pandit Bhagtanand who was previously a Mahant of the Dera was not a Chela of his predecessor Mahant Sunder Das and that Mahant Krishan Das himself was not a Chela of his predecessor Mahant Bhagtanand.
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Moosa S. Madha & Azam S. Madha Vs. Commissioner Of Income-Tax, West Bengal,Calcutta | facts of the present case we must find out:(1) Whether during the first of January 1943 to 31st of December 1946 the assessee was in India for a period of three hundred and sixty five days or more;(2) Whether the assessee was in India at any time between the 1st January 1947 to 31st December, 1947; and(3) Whether the presence of the assessee in India in 1947 was not an occasional or casual visit.10. So far as the first two ingredients are concerned there is no dispute. It is admitted that the assessee was in India during the years l943-46 for a period of more than three hundred and sixty-five days. It is also admitted that he was in India for a period of two months in the year 1947. Therefore, the only question that requires to be decided is whether his visit to India in 1947 was occasional or casual. The burden of proving this point is undoubtedly on the assessee. The Department cannot be expected to prove a negative. The assessee knows best why he staved in India for a period of two months in 1947. This question is no more res integra. In Commr. of Income Tax, West Bengal v. B. K. Dhote, (1967) 66 ITR 457 (SC) this court ruled that in order that the assessee may be treated as resident in British India under Section 4A (a) (iii) of the Act the onus of proving that the assessee was in British India during the four years preceding the previous year for a period of or for periods amounting in all to three hundred and sixty-five days and in the relevant previous year at any time, lies upon the Department. But if these two conditions are established or admitted, the onus lies upon the assessee to prove that his visits in the previous year were occasional or casual. In the present case it may be noted that the Income Tax Officer, the Assistant Appellate Commissioner, the Tribunal as well as the High Court have come to the conclusion that the assessee failed to prove that his visit to India in 1947 was casual or occasional. This is essentially a finding of fact. Hence the only point that calls for decision is whether the finding reached by the Tribunal is unsupported by any evidence. We have earlier stated the legal position. The burden of proving that the assessees visit to India in 1947 was occasional or casual is on the assessee. According to the Tribunal the assessee had not discharged that burden. The assessee had produced no evidence whatsoever to prove that his visit during the year in question was an occasional or casual. Worst still is, in the affidavit filed by him before the Department he merely stated that he visited India for a period of two months in 1947 but did not state the reason for visiting India nor did he state that his visit was occasional or casual. In the face of this affidavit it is idle for the assessee to contend that the Tribunal came to an erroneous conclusion in holding that he did not discharge the burden of proving that his visit to India in 1947 was occasional or casual.11. The sole circumstance on which Mr. Goswami, the learned counsel for the appellant, relied on was that the assessee had no business in India. The fact that the assessee had no business in India during the period of his stay of two months in India does not discharge the onus which is placed on the assessee to show that his visit to India was occasional or casual.12. For the reasons mentioned above we agree with the High Court in the answer given to the first question.13. Now turning to the second question, admittedly the assessee had no business in India. He had not explained why in the year 1947, rupees two lakhs were remitted from Burma to India. It is seen from the evidence on record that the assessee did purchase a house in Calcutta in 1948. The assessee contended before the Tribunal as well as before the High Court that the money transferred from Burma to India was his capital asset and not income earned from business in Burma. This was a matter which the assessee had to prove. He has failed to prove the same. Even though the Income Tax Officer gave him several opportunities to produce his Account Books to establish his case that the money remitted to India did not represent his business income, he failed to produce his Account Books. It was contended by Mr. Goswami that he produced certified photostat copies of his accounts before the Tribunal and the Tribunal erred in not considering those documents. In the first place it must be noted that the assessee has no satisfactory explanation for not producing his account books before the Income Tax Officer as well as the Assistant Appellate Commissioner. Photostat copies have very little evidentiary value. Further it is seen from the order of the Tribunal that there is no reference to the photostat copies in that order. It does not appear from that order that any reliance was placed on those documents before the Tribunal. The complaint that the Tribunal ignored those documents without good reasons does not appear to have been made in the application filed by the assessee under Section 66 (l). The statement of the case submitted by the Tribunal does not refer to that fact. Admittedly the assessee did not take up any question regarding those documents. Hence the High Court is fully justified in not considering those documents. In our opinion the Tribunal was right in its conclusion that the remittance of Rs. 2 lakhs from Burma to India during the year 1947 is not proved to be the capital asset of the assessee. Hence, there is no reason to interfere with that finding of the Tribunal. In this respect also we are fully in agreement with the High Court. | 0[ds]The burden of proving that the assessees visit to India in 1947 was occasional or casual is on the assessee. According to the Tribunal the assessee had not discharged that burden. The assessee had produced no evidence whatsoever to prove that his visit during the year in question was an occasional or casual. Worst still is, in the affidavit filed by him before the Department he merely stated that he visited India for a period of two months in 1947 but did not state the reason for visiting India nor did he state that his visit was occasional or casual. In the face of this affidavit it is idle for the assessee to contend that the Tribunal came to an erroneous conclusion in holding that he did not discharge the burden of proving that his visit to India in 1947 was occasional orfact that the assessee had no business in India during the period of his stay of two months in India does not discharge the onus which is placed on the assessee to show that his visit to India was occasional or casual.For the reasons mentioned above we agree with the High Court in the answer given to the first question.13. Now turning to the second question, admittedly the assessee had no business in India. He had not explained why in the year 1947, rupees two lakhs were remitted from Burma to India. It is seen from the evidence on record that the assessee did purchase a house in Calcutta in 1948. The assessee contended before the Tribunal as well as before the High Court that the money transferred from Burma to India was his capital asset and not income earned from business in Burma. This was a matter which the assessee had to prove. He has failed to prove the same. Even though the Income Tax Officer gave him several opportunities to produce his Account Books to establish his case that the money remitted to India did not represent his business income, he failed to produce his Accountthe first place it must be noted that the assessee has no satisfactory explanation for not producing his account books before the Income Tax Officer as well as the Assistant Appellate Commissioner. Photostat copies have very little evidentiary value. Further it is seen from the order of the Tribunal that there is no reference to the photostat copies in that order. It does not appear from that order that any reliance was placed on those documents before the Tribunal. The complaint that the Tribunal ignored those documents without good reasons does not appear to have been made in the application filed by the assessee under Section 66 (l). The statement of the case submitted by the Tribunal does not refer to that fact. Admittedly the assessee did not take up any question regarding those documents. Hence the High Court is fully justified in not considering those documents. In our opinion the Tribunal was right in its conclusion that the remittance of Rs. 2 lakhs from Burma to India during the year 1947 is not proved to be the capital asset of the assessee. Hence, there is no reason to interfere with that finding of the Tribunal. In this respect also we are fully in agreement with the High Court. | 0 | 2,161 | 582 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
facts of the present case we must find out:(1) Whether during the first of January 1943 to 31st of December 1946 the assessee was in India for a period of three hundred and sixty five days or more;(2) Whether the assessee was in India at any time between the 1st January 1947 to 31st December, 1947; and(3) Whether the presence of the assessee in India in 1947 was not an occasional or casual visit.10. So far as the first two ingredients are concerned there is no dispute. It is admitted that the assessee was in India during the years l943-46 for a period of more than three hundred and sixty-five days. It is also admitted that he was in India for a period of two months in the year 1947. Therefore, the only question that requires to be decided is whether his visit to India in 1947 was occasional or casual. The burden of proving this point is undoubtedly on the assessee. The Department cannot be expected to prove a negative. The assessee knows best why he staved in India for a period of two months in 1947. This question is no more res integra. In Commr. of Income Tax, West Bengal v. B. K. Dhote, (1967) 66 ITR 457 (SC) this court ruled that in order that the assessee may be treated as resident in British India under Section 4A (a) (iii) of the Act the onus of proving that the assessee was in British India during the four years preceding the previous year for a period of or for periods amounting in all to three hundred and sixty-five days and in the relevant previous year at any time, lies upon the Department. But if these two conditions are established or admitted, the onus lies upon the assessee to prove that his visits in the previous year were occasional or casual. In the present case it may be noted that the Income Tax Officer, the Assistant Appellate Commissioner, the Tribunal as well as the High Court have come to the conclusion that the assessee failed to prove that his visit to India in 1947 was casual or occasional. This is essentially a finding of fact. Hence the only point that calls for decision is whether the finding reached by the Tribunal is unsupported by any evidence. We have earlier stated the legal position. The burden of proving that the assessees visit to India in 1947 was occasional or casual is on the assessee. According to the Tribunal the assessee had not discharged that burden. The assessee had produced no evidence whatsoever to prove that his visit during the year in question was an occasional or casual. Worst still is, in the affidavit filed by him before the Department he merely stated that he visited India for a period of two months in 1947 but did not state the reason for visiting India nor did he state that his visit was occasional or casual. In the face of this affidavit it is idle for the assessee to contend that the Tribunal came to an erroneous conclusion in holding that he did not discharge the burden of proving that his visit to India in 1947 was occasional or casual.11. The sole circumstance on which Mr. Goswami, the learned counsel for the appellant, relied on was that the assessee had no business in India. The fact that the assessee had no business in India during the period of his stay of two months in India does not discharge the onus which is placed on the assessee to show that his visit to India was occasional or casual.12. For the reasons mentioned above we agree with the High Court in the answer given to the first question.13. Now turning to the second question, admittedly the assessee had no business in India. He had not explained why in the year 1947, rupees two lakhs were remitted from Burma to India. It is seen from the evidence on record that the assessee did purchase a house in Calcutta in 1948. The assessee contended before the Tribunal as well as before the High Court that the money transferred from Burma to India was his capital asset and not income earned from business in Burma. This was a matter which the assessee had to prove. He has failed to prove the same. Even though the Income Tax Officer gave him several opportunities to produce his Account Books to establish his case that the money remitted to India did not represent his business income, he failed to produce his Account Books. It was contended by Mr. Goswami that he produced certified photostat copies of his accounts before the Tribunal and the Tribunal erred in not considering those documents. In the first place it must be noted that the assessee has no satisfactory explanation for not producing his account books before the Income Tax Officer as well as the Assistant Appellate Commissioner. Photostat copies have very little evidentiary value. Further it is seen from the order of the Tribunal that there is no reference to the photostat copies in that order. It does not appear from that order that any reliance was placed on those documents before the Tribunal. The complaint that the Tribunal ignored those documents without good reasons does not appear to have been made in the application filed by the assessee under Section 66 (l). The statement of the case submitted by the Tribunal does not refer to that fact. Admittedly the assessee did not take up any question regarding those documents. Hence the High Court is fully justified in not considering those documents. In our opinion the Tribunal was right in its conclusion that the remittance of Rs. 2 lakhs from Burma to India during the year 1947 is not proved to be the capital asset of the assessee. Hence, there is no reason to interfere with that finding of the Tribunal. In this respect also we are fully in agreement with the High Court.
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### Explanation:
The burden of proving that the assessees visit to India in 1947 was occasional or casual is on the assessee. According to the Tribunal the assessee had not discharged that burden. The assessee had produced no evidence whatsoever to prove that his visit during the year in question was an occasional or casual. Worst still is, in the affidavit filed by him before the Department he merely stated that he visited India for a period of two months in 1947 but did not state the reason for visiting India nor did he state that his visit was occasional or casual. In the face of this affidavit it is idle for the assessee to contend that the Tribunal came to an erroneous conclusion in holding that he did not discharge the burden of proving that his visit to India in 1947 was occasional orfact that the assessee had no business in India during the period of his stay of two months in India does not discharge the onus which is placed on the assessee to show that his visit to India was occasional or casual.For the reasons mentioned above we agree with the High Court in the answer given to the first question.13. Now turning to the second question, admittedly the assessee had no business in India. He had not explained why in the year 1947, rupees two lakhs were remitted from Burma to India. It is seen from the evidence on record that the assessee did purchase a house in Calcutta in 1948. The assessee contended before the Tribunal as well as before the High Court that the money transferred from Burma to India was his capital asset and not income earned from business in Burma. This was a matter which the assessee had to prove. He has failed to prove the same. Even though the Income Tax Officer gave him several opportunities to produce his Account Books to establish his case that the money remitted to India did not represent his business income, he failed to produce his Accountthe first place it must be noted that the assessee has no satisfactory explanation for not producing his account books before the Income Tax Officer as well as the Assistant Appellate Commissioner. Photostat copies have very little evidentiary value. Further it is seen from the order of the Tribunal that there is no reference to the photostat copies in that order. It does not appear from that order that any reliance was placed on those documents before the Tribunal. The complaint that the Tribunal ignored those documents without good reasons does not appear to have been made in the application filed by the assessee under Section 66 (l). The statement of the case submitted by the Tribunal does not refer to that fact. Admittedly the assessee did not take up any question regarding those documents. Hence the High Court is fully justified in not considering those documents. In our opinion the Tribunal was right in its conclusion that the remittance of Rs. 2 lakhs from Burma to India during the year 1947 is not proved to be the capital asset of the assessee. Hence, there is no reason to interfere with that finding of the Tribunal. In this respect also we are fully in agreement with the High Court.
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Gyanendra Kumar Vs. State of Uttar Pradesh | and the two empty cartridges were sent to the Scientific Section of the U.P. Government where Inspector Rameshwar Prasad Rastogi, PW 3 found, after firing two live cartridges from the gun that the two empty cartridges which had been sent to him must have been fired from this gun. Munshi Lal died of the gun-shot wound and on a post-mortem examination of his body it was found that he had a gun-shot injury which was chest cavity deep with margins blackened. A charge-sheet was filed against the appellant and his rescuers. The learned Sessions Judge acquitted the rescuers but convicted the appellant as aforesaid.6. The defence of the appellant was one of alibi. He said that he had gone away to Bareilly on the evening of August 29, 1964 and that he was not present at all at the time of the occurrence. He further stated that he had been falsely involved because his father and uncle were influential men and the prosecution witnesses were jealous of them.7. Both the Courts held that he prosecution case had been substantially proved. The eye-witnesses of the occurrence were Bankey Lal PW 9, Sita Ram, Pw 1, Chandra Shekhar, PW 6 and Krishan Gopal PW 7. Besides, there was the evidence of the two empty cartridges, which, in the opinion of the Export Inspector Rastogi, had been fired from the gun recovered from Mehtab Rai. There was also the piece of the shirt of the appellant. Objection was taken to the evidence of the eye-witnesses on the ground that they were associates of each other and partisan witnesses. After due consideration of this objection, both Courts held that the appellant had fired two shots from the gun at Bankey Lal. The first missed its aim and the second hit the unfortunate Munshi Lal when it was really intended for Bankey Lal. These are findings of fact and this Court would not normally interfere with the High Courts findings of fact. We may say at once that no good grounds are made before us for reviewing the findings.8. Mr. Kohli appearing for the appellant, however, submitted that on the basis of some of the findings of the High Court and the admitted circumstances of the case it was very probable that the deceased Munshi Lal might have been hit by a shot discharged accidentally in a scuffle. Admittedly Munshi Lal had rushed to the appellant to prevent him from firing the second shot. It is submitted that at this stage there might have been a scuffle between the two and in the scuffle the gun was accidentally discharged and Munshi Lal fell to the shot. In this connection Mr. Kohli particularly invited our attention to the following observations of the High Court."It is not very clear how Munshi Lal came in between the barred of the gun and Bankey Lal.In our opinion, there is not substance in this submission. The observations of the High court must be read in their context. The High Court does not say that there was any scuffle and the appellant. There is no evidence, to show that Munshi Lal trying to catch hold of the gun. The evidence, on the other hand, was that Munshi Lal was pushed aside, and, according to the High Court, it was quite likely that when he was pushed aside, he steadied himself and assumed a standing position just when the appellant fired a second time at Bankey Lal. The fact is that Munshi Lal received the wound in the chest, though from a very short range, which only goes to show that the appellant was firing at chest height. Moreover, there is absolutely no basis made in the evidence to show that here was a scuffle. The case of the appellant was that he was not present at the time of the occurrence. No suggestion also about the alleged scuffle or the gun accidentally discharging itself was made when the eye-witnesses were cross-examined. The point was not even raised before the learned Sessions Judge. A feeble attempt, however, seems to have been made before the High Court but the submission was rejected by the High Court, and in our opinion, rightly.9. It was next contended that the offence, if any, was one under Section 304, Part-I and not under Section 302 read with Section 302, IPC. It was argued that the appellant was of an irritable temperament and that he must have fired the shots under grave and sudden provocation. It may be that the appellant had an irritable temper but there was no question of any grave provocation much less a sudden provocation. After all, during the course of the meeting, all that Bankey Lal had said was that Mehtab Rai and Raja Ram were monopolising all seats of authority and they were dishonest. The appellant being a near relation may certainly resent such derogatory words addressed to his father and uncle. But they can hardly be said to be grave provocation having regard to the station in life Mehtab Rai and Raja Ram occupied, on the one hand, and Bankey Lal, on the other. It is true that what is grave provocation in one set of society may not be grave provocation in another. But the words uttered by Bankey Lal to the effect that they were dishonest cannot be regarded as grave provocation under the circumstances. In any case the provocation was far from being sudden. The appellant goes to his house which is about a furlong away and fetches the gun. There was sufficient time for him to cool down. His action was deliberate. He asked those who were near Bankey Lal to move away because he wanted to shoot Bankey Lal. One shot missed its aim. Munshi Lal came up to prevent him from firing another shot. The appellant pushed him and then fired the second shot. All this cannot be attributed to any grave and sudden provocation. The offence, therefore, is not under Section 304, Part I. | 0[ds]In our opinion, there is not substance in this submission. The observations of the High court must be read in their context. The High Court does not say that there was any scuffle and the appellant. There is no evidence, to show that Munshi Lal trying to catch hold of the gun. The evidence, on the other hand, was that Munshi Lal was pushed aside, and, according to the High Court, it was quite likely that when he was pushed aside, he steadied himself and assumed a standing position just when the appellant fired a second time at Bankey Lal. The fact is that Munshi Lal received the wound in the chest, though from a very short range, which only goes to show that the appellant was firing at chest height. Moreover, there is absolutely no basis made in the evidence to show that here was a scuffle. The case of the appellant was that he was not present at the time of the occurrence. No suggestion also about the alleged scuffle or the gun accidentally discharging itself was made when thed. The point was not even raised before the learned Sessions Judge. A feeble attempt, however, seems to have been made before the High Court but the submission was rejected by the High Court, and in our opinion, rightly.9. It was next contended that the offence, if any, was one under Section 304,and not under Section 302 read with Section 302, IPC. It was argued that the appellant was of an irritable temperament and that he must have fired the shots under grave and sudden provocation. It may be that the appellant had an irritable temper but there was no question of any grave provocation much less a sudden provocation. After all, during the course of the meeting, all that Bankey Lal had said was that Mehtab Rai and Raja Ram were monopolising all seats of authority and they were dishonest. The appellant being a near relation may certainly resent such derogatory words addressed to his father and uncle. But they can hardly be said to be grave provocation having regard to the station in life Mehtab Rai and Raja Ram occupied, on the one hand, and Bankey Lal, on the other. It is true that what is grave provocation in one set of society may not be grave provocation in another. But the words uttered by Bankey Lal to the effect that they were dishonest cannot be regarded as grave provocation under the circumstances. In any case the provocation was far from being sudden. The appellant goes to his house which is about a furlong away and fetches the gun. There was sufficient time for him to cool down. His action was deliberate. He asked those who were near Bankey Lal to move away because he wanted to shoot Bankey Lal. One shot missed its aim. Munshi Lal came up to prevent him from firing another shot. The appellant pushed him and then fired the second shot. All this cannot be attributed to any grave and sudden provocation. The offence, therefore, is not under Section 304, Part I. | 0 | 2,023 | 583 | ### Instruction:
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and the two empty cartridges were sent to the Scientific Section of the U.P. Government where Inspector Rameshwar Prasad Rastogi, PW 3 found, after firing two live cartridges from the gun that the two empty cartridges which had been sent to him must have been fired from this gun. Munshi Lal died of the gun-shot wound and on a post-mortem examination of his body it was found that he had a gun-shot injury which was chest cavity deep with margins blackened. A charge-sheet was filed against the appellant and his rescuers. The learned Sessions Judge acquitted the rescuers but convicted the appellant as aforesaid.6. The defence of the appellant was one of alibi. He said that he had gone away to Bareilly on the evening of August 29, 1964 and that he was not present at all at the time of the occurrence. He further stated that he had been falsely involved because his father and uncle were influential men and the prosecution witnesses were jealous of them.7. Both the Courts held that he prosecution case had been substantially proved. The eye-witnesses of the occurrence were Bankey Lal PW 9, Sita Ram, Pw 1, Chandra Shekhar, PW 6 and Krishan Gopal PW 7. Besides, there was the evidence of the two empty cartridges, which, in the opinion of the Export Inspector Rastogi, had been fired from the gun recovered from Mehtab Rai. There was also the piece of the shirt of the appellant. Objection was taken to the evidence of the eye-witnesses on the ground that they were associates of each other and partisan witnesses. After due consideration of this objection, both Courts held that the appellant had fired two shots from the gun at Bankey Lal. The first missed its aim and the second hit the unfortunate Munshi Lal when it was really intended for Bankey Lal. These are findings of fact and this Court would not normally interfere with the High Courts findings of fact. We may say at once that no good grounds are made before us for reviewing the findings.8. Mr. Kohli appearing for the appellant, however, submitted that on the basis of some of the findings of the High Court and the admitted circumstances of the case it was very probable that the deceased Munshi Lal might have been hit by a shot discharged accidentally in a scuffle. Admittedly Munshi Lal had rushed to the appellant to prevent him from firing the second shot. It is submitted that at this stage there might have been a scuffle between the two and in the scuffle the gun was accidentally discharged and Munshi Lal fell to the shot. In this connection Mr. Kohli particularly invited our attention to the following observations of the High Court."It is not very clear how Munshi Lal came in between the barred of the gun and Bankey Lal.In our opinion, there is not substance in this submission. The observations of the High court must be read in their context. The High Court does not say that there was any scuffle and the appellant. There is no evidence, to show that Munshi Lal trying to catch hold of the gun. The evidence, on the other hand, was that Munshi Lal was pushed aside, and, according to the High Court, it was quite likely that when he was pushed aside, he steadied himself and assumed a standing position just when the appellant fired a second time at Bankey Lal. The fact is that Munshi Lal received the wound in the chest, though from a very short range, which only goes to show that the appellant was firing at chest height. Moreover, there is absolutely no basis made in the evidence to show that here was a scuffle. The case of the appellant was that he was not present at the time of the occurrence. No suggestion also about the alleged scuffle or the gun accidentally discharging itself was made when the eye-witnesses were cross-examined. The point was not even raised before the learned Sessions Judge. A feeble attempt, however, seems to have been made before the High Court but the submission was rejected by the High Court, and in our opinion, rightly.9. It was next contended that the offence, if any, was one under Section 304, Part-I and not under Section 302 read with Section 302, IPC. It was argued that the appellant was of an irritable temperament and that he must have fired the shots under grave and sudden provocation. It may be that the appellant had an irritable temper but there was no question of any grave provocation much less a sudden provocation. After all, during the course of the meeting, all that Bankey Lal had said was that Mehtab Rai and Raja Ram were monopolising all seats of authority and they were dishonest. The appellant being a near relation may certainly resent such derogatory words addressed to his father and uncle. But they can hardly be said to be grave provocation having regard to the station in life Mehtab Rai and Raja Ram occupied, on the one hand, and Bankey Lal, on the other. It is true that what is grave provocation in one set of society may not be grave provocation in another. But the words uttered by Bankey Lal to the effect that they were dishonest cannot be regarded as grave provocation under the circumstances. In any case the provocation was far from being sudden. The appellant goes to his house which is about a furlong away and fetches the gun. There was sufficient time for him to cool down. His action was deliberate. He asked those who were near Bankey Lal to move away because he wanted to shoot Bankey Lal. One shot missed its aim. Munshi Lal came up to prevent him from firing another shot. The appellant pushed him and then fired the second shot. All this cannot be attributed to any grave and sudden provocation. The offence, therefore, is not under Section 304, Part I.
### Response:
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### Explanation:
In our opinion, there is not substance in this submission. The observations of the High court must be read in their context. The High Court does not say that there was any scuffle and the appellant. There is no evidence, to show that Munshi Lal trying to catch hold of the gun. The evidence, on the other hand, was that Munshi Lal was pushed aside, and, according to the High Court, it was quite likely that when he was pushed aside, he steadied himself and assumed a standing position just when the appellant fired a second time at Bankey Lal. The fact is that Munshi Lal received the wound in the chest, though from a very short range, which only goes to show that the appellant was firing at chest height. Moreover, there is absolutely no basis made in the evidence to show that here was a scuffle. The case of the appellant was that he was not present at the time of the occurrence. No suggestion also about the alleged scuffle or the gun accidentally discharging itself was made when thed. The point was not even raised before the learned Sessions Judge. A feeble attempt, however, seems to have been made before the High Court but the submission was rejected by the High Court, and in our opinion, rightly.9. It was next contended that the offence, if any, was one under Section 304,and not under Section 302 read with Section 302, IPC. It was argued that the appellant was of an irritable temperament and that he must have fired the shots under grave and sudden provocation. It may be that the appellant had an irritable temper but there was no question of any grave provocation much less a sudden provocation. After all, during the course of the meeting, all that Bankey Lal had said was that Mehtab Rai and Raja Ram were monopolising all seats of authority and they were dishonest. The appellant being a near relation may certainly resent such derogatory words addressed to his father and uncle. But they can hardly be said to be grave provocation having regard to the station in life Mehtab Rai and Raja Ram occupied, on the one hand, and Bankey Lal, on the other. It is true that what is grave provocation in one set of society may not be grave provocation in another. But the words uttered by Bankey Lal to the effect that they were dishonest cannot be regarded as grave provocation under the circumstances. In any case the provocation was far from being sudden. The appellant goes to his house which is about a furlong away and fetches the gun. There was sufficient time for him to cool down. His action was deliberate. He asked those who were near Bankey Lal to move away because he wanted to shoot Bankey Lal. One shot missed its aim. Munshi Lal came up to prevent him from firing another shot. The appellant pushed him and then fired the second shot. All this cannot be attributed to any grave and sudden provocation. The offence, therefore, is not under Section 304, Part I.
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A.K.A.Ct.V.Ct. Meenakshisundaram Chettiar Vs. A.K.A.Ct.V.Ct. Venkatachalam Chettiar | defendant to the plaintiff on accounting. The High Court was in error in coming to the conclusion that the plaint is clear that apart from the money which the defendant is liable to pay to him as his agent, the plaintiff has quantified the amount at Rs. 9, 74, 598.35 as payable by the defendant to him. In our view, the plaint has been misread. Though paragraphs 6, 7 and 8 refer to the transactions in which the plaintiff is entitled to Rs. 16, 12, 000 paragraphs 10, 11 and 14(a) make it clear that the suit was for accounting not only regarding Rs. 16, 12, 000 but also for the management by the defendant as power of attorney agent. The power, as already noted, confers a right on the defendant to invest moneys. If the defendant as shown in the written statement itself, is able to establish that in the course of his management he had invested moneys according to the power conferred on him, he would have properly accounted for his management. In the written statement the defendant himself had pleaded that the moneys which he received from Alagappa have been remitted to the plaintiff by investment and otherwise. The conclusion arrived at by the High Court is, therefore, unsupportable. 7. The provision relating to the levy of court-fee for a suit on accounts is found in Section 7(iv)(f) of the Court Fees Act, 1870 which runs as follows : 7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :- (iv) In suits - (f) for accounts - according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. In all such suits the plaintiff shall state the amount at which he values the relief sought. Reading this provision by itself the amount of court-fee payable in suits for accounts is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The plaintiff is required to state the amount at which he values the relief sought. In suits for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to for, as in the present case, when the plaintiff asks for accounting regarding the management by a power of attorney agent he might not know the state of affairs of the defendants management and the amount to which he would be entitled to on accounting. But it is necessary that the amount at which he values the relief sought for should be a reasonable estimate. Section 35(l) of the Tamil Nadu Court Fees and Suits Valuation Act, 14 of 1955, is as follows : In a suit for accounts, fee shall be computed on the amount sued for as estimated in the plaint. Sub-section (2) of Section 35 provides : Where the amount payable to the plaintiff as ascertained in the suit is in excess of the amount as estimated in the plaint, no decree directing payment of the amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the amount as ascertained, is paid. If the additional fee is not paid within such time as the Court may fix, the decree shall be limited to the amount to which the fee paid extends.While Section 35(l) permits the plaintiff to pay the court-fee on the amount estimated by him, sub-section (2) safeguards against the loss of revenue as it requires that no decree for any amount in excess of the amount as the estimated in the plaint shall be passed unless the difference between the fee actually paid and the fees that would have been payable had the suit comprised the whole of the amount as ascertained, is paid. But here again it is necessary that the plaintiff should give a fair estimate of the amount for which he sues. Order 7, Rule 11, of the Civil Procedure Code, requires the court to return the plaint if the relief claimed is undervalued. Order 7, Rule 11 runs thus : 11. The plaint shall be rejected in the following cases :- (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; This section casts a duty on the court to reject the plaint when the relief claimed is undervalued. If on the materials available before it the Court is satisfied that the value of relief as estimated by the plaintiff in a suit for accounts is undervalued the plaint is liable to be rejected. It is therefore necessary that the plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case. In coming to the conclusion that the suit is undervalued the court will have to take into account that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount he can put a tentative valuation upon the suit for accounts which is adequate and reasonable. The plaintiff cannot arbitrarily and deliberately undervalue the relief. A Full Bench of the Andhra Pradesh High Court in a decision in Chillakuru Chanchuram Reddy v. Kanupuru Chenchurami Reddy (ILR 1969 AP 1042 (FB), after elaborate consideration of the case law on the subject has rightly observed there must be a genuine effort on the part of plaintiff to estimate his relief and that the estimate should not be a deliberate underestimation. 8. On a consideration of the entire circumstances of the case we are not satisfied that the estimate of the relief as given by the plaintiff is inadequate or unreasonable or a deliberate underestimation. 9. | 1[ds]This paragraph makes it clear that what was required was not only an account of the amount recovered by the defendant from Alagappa but also an account of all the transactions of the defendant as the plaintiffs agent from January 22, 19656. A reading of the written statement also makes it clear that the plaint was understood by the defendant as a suit for accounting of his management as a power of attorney agent. In paragraph 7 of the written statement the defendant states that out of 6, 50, 000 dollars got for the plaintiffs one-fourth share, 40, 000 dollars were invested in fixed deposit in plaintiffs name with the Indian Overseas Bank, Kuala Lumpur and 10, 000 dollars in plaintiffs V.CT.M. Accounts on April 10, 1965. On the same day the remaining 6, 00, 000 dollars were invested with Alagappa Chettiar himself who had credited the amount in plaintiffs name in his accounts. If the defendant was able to prove these contentions, the accounts as required by the plaintiff would have been satisfactorily rendered and very little would have been due by the defendant to the plaintiff on accounting. The High Court was in error in coming to the conclusion that the plaint is clear that apart from the money which the defendant is liable to pay to him as his agent, the plaintiff has quantified the amount at Rs. 9, 74, 598.35 as payable by the defendant to him. In our view, the plaint has been misread. Though paragraphs 6, 7 and 8 refer to the transactions in which the plaintiff is entitled to Rs. 16, 12, 000 paragraphs 10, 11 and 14(a) make it clear that the suit was for accounting not only regarding Rs. 16, 12, 000 but also for the management by the defendant as power of attorney agent. The power, as already noted, confers a right on the defendant to invest moneys. If the defendant as shown in the written statement itself, is able to establish that in the course of his management he had invested moneys according to the power conferred on him, he would have properly accounted for his management. In the written statement the defendant himself had pleaded that the moneys which he received from Alagappa have been remitted to the plaintiff by investment and otherwise. The conclusion arrived at by the High Court is, therefore, unsupportableReading this provision by itself the amount of court-fee payable in suits for accounts is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The plaintiff is required to state the amount at which he values the relief sought. In suits for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to for, as in the present case, when the plaintiff asks for accounting regarding the management by a power of attorney agent he might not know the state of affairs of the defendants management and the amount to which he would be entitled to on accounting. But it is necessary that the amount at which he values the relief sought for should be a reasonable estimateA Full Bench of the Andhra Pradesh High Court in a decision in Chillakuru Chanchuram Reddy v. Kanupuru Chenchurami Reddy (ILR 1969 AP 1042 (FB), after elaborate consideration of the case law on the subject has rightly observed there must be a genuine effort on the part of plaintiff to estimate his relief and that the estimate should not be a deliberate underestimation8. On a consideration of the entire circumstances of the case we are not satisfied that the estimate of the relief as given by the plaintiff is inadequate or unreasonable or a deliberate underestimation. | 1 | 2,953 | 685 | ### Instruction:
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defendant to the plaintiff on accounting. The High Court was in error in coming to the conclusion that the plaint is clear that apart from the money which the defendant is liable to pay to him as his agent, the plaintiff has quantified the amount at Rs. 9, 74, 598.35 as payable by the defendant to him. In our view, the plaint has been misread. Though paragraphs 6, 7 and 8 refer to the transactions in which the plaintiff is entitled to Rs. 16, 12, 000 paragraphs 10, 11 and 14(a) make it clear that the suit was for accounting not only regarding Rs. 16, 12, 000 but also for the management by the defendant as power of attorney agent. The power, as already noted, confers a right on the defendant to invest moneys. If the defendant as shown in the written statement itself, is able to establish that in the course of his management he had invested moneys according to the power conferred on him, he would have properly accounted for his management. In the written statement the defendant himself had pleaded that the moneys which he received from Alagappa have been remitted to the plaintiff by investment and otherwise. The conclusion arrived at by the High Court is, therefore, unsupportable. 7. The provision relating to the levy of court-fee for a suit on accounts is found in Section 7(iv)(f) of the Court Fees Act, 1870 which runs as follows : 7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :- (iv) In suits - (f) for accounts - according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. In all such suits the plaintiff shall state the amount at which he values the relief sought. Reading this provision by itself the amount of court-fee payable in suits for accounts is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The plaintiff is required to state the amount at which he values the relief sought. In suits for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to for, as in the present case, when the plaintiff asks for accounting regarding the management by a power of attorney agent he might not know the state of affairs of the defendants management and the amount to which he would be entitled to on accounting. But it is necessary that the amount at which he values the relief sought for should be a reasonable estimate. Section 35(l) of the Tamil Nadu Court Fees and Suits Valuation Act, 14 of 1955, is as follows : In a suit for accounts, fee shall be computed on the amount sued for as estimated in the plaint. Sub-section (2) of Section 35 provides : Where the amount payable to the plaintiff as ascertained in the suit is in excess of the amount as estimated in the plaint, no decree directing payment of the amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the amount as ascertained, is paid. If the additional fee is not paid within such time as the Court may fix, the decree shall be limited to the amount to which the fee paid extends.While Section 35(l) permits the plaintiff to pay the court-fee on the amount estimated by him, sub-section (2) safeguards against the loss of revenue as it requires that no decree for any amount in excess of the amount as the estimated in the plaint shall be passed unless the difference between the fee actually paid and the fees that would have been payable had the suit comprised the whole of the amount as ascertained, is paid. But here again it is necessary that the plaintiff should give a fair estimate of the amount for which he sues. Order 7, Rule 11, of the Civil Procedure Code, requires the court to return the plaint if the relief claimed is undervalued. Order 7, Rule 11 runs thus : 11. The plaint shall be rejected in the following cases :- (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; This section casts a duty on the court to reject the plaint when the relief claimed is undervalued. If on the materials available before it the Court is satisfied that the value of relief as estimated by the plaintiff in a suit for accounts is undervalued the plaint is liable to be rejected. It is therefore necessary that the plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case. In coming to the conclusion that the suit is undervalued the court will have to take into account that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount he can put a tentative valuation upon the suit for accounts which is adequate and reasonable. The plaintiff cannot arbitrarily and deliberately undervalue the relief. A Full Bench of the Andhra Pradesh High Court in a decision in Chillakuru Chanchuram Reddy v. Kanupuru Chenchurami Reddy (ILR 1969 AP 1042 (FB), after elaborate consideration of the case law on the subject has rightly observed there must be a genuine effort on the part of plaintiff to estimate his relief and that the estimate should not be a deliberate underestimation. 8. On a consideration of the entire circumstances of the case we are not satisfied that the estimate of the relief as given by the plaintiff is inadequate or unreasonable or a deliberate underestimation. 9.
### Response:
1
### Explanation:
This paragraph makes it clear that what was required was not only an account of the amount recovered by the defendant from Alagappa but also an account of all the transactions of the defendant as the plaintiffs agent from January 22, 19656. A reading of the written statement also makes it clear that the plaint was understood by the defendant as a suit for accounting of his management as a power of attorney agent. In paragraph 7 of the written statement the defendant states that out of 6, 50, 000 dollars got for the plaintiffs one-fourth share, 40, 000 dollars were invested in fixed deposit in plaintiffs name with the Indian Overseas Bank, Kuala Lumpur and 10, 000 dollars in plaintiffs V.CT.M. Accounts on April 10, 1965. On the same day the remaining 6, 00, 000 dollars were invested with Alagappa Chettiar himself who had credited the amount in plaintiffs name in his accounts. If the defendant was able to prove these contentions, the accounts as required by the plaintiff would have been satisfactorily rendered and very little would have been due by the defendant to the plaintiff on accounting. The High Court was in error in coming to the conclusion that the plaint is clear that apart from the money which the defendant is liable to pay to him as his agent, the plaintiff has quantified the amount at Rs. 9, 74, 598.35 as payable by the defendant to him. In our view, the plaint has been misread. Though paragraphs 6, 7 and 8 refer to the transactions in which the plaintiff is entitled to Rs. 16, 12, 000 paragraphs 10, 11 and 14(a) make it clear that the suit was for accounting not only regarding Rs. 16, 12, 000 but also for the management by the defendant as power of attorney agent. The power, as already noted, confers a right on the defendant to invest moneys. If the defendant as shown in the written statement itself, is able to establish that in the course of his management he had invested moneys according to the power conferred on him, he would have properly accounted for his management. In the written statement the defendant himself had pleaded that the moneys which he received from Alagappa have been remitted to the plaintiff by investment and otherwise. The conclusion arrived at by the High Court is, therefore, unsupportableReading this provision by itself the amount of court-fee payable in suits for accounts is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. The plaintiff is required to state the amount at which he values the relief sought. In suits for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to for, as in the present case, when the plaintiff asks for accounting regarding the management by a power of attorney agent he might not know the state of affairs of the defendants management and the amount to which he would be entitled to on accounting. But it is necessary that the amount at which he values the relief sought for should be a reasonable estimateA Full Bench of the Andhra Pradesh High Court in a decision in Chillakuru Chanchuram Reddy v. Kanupuru Chenchurami Reddy (ILR 1969 AP 1042 (FB), after elaborate consideration of the case law on the subject has rightly observed there must be a genuine effort on the part of plaintiff to estimate his relief and that the estimate should not be a deliberate underestimation8. On a consideration of the entire circumstances of the case we are not satisfied that the estimate of the relief as given by the plaintiff is inadequate or unreasonable or a deliberate underestimation.
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Idandas Vs. Anant Ramchandra Phadke Dead By L.Rs | begin with the lease was given to the defendant in respect of an open piece of land,2. That on the open piece of land the appellant installed a flour mill and that the defendant was not using the land for any other purpose except running a flour mill.3. That the receipts filed by the tenant clearly show that the lease was doubtless a yearly one.6. Reliance was placed by the District Judge on the counterfoil where the plaintiff-landlord tried to make out a case of monthly tenancy but the entry in the counter-foil being an admission in his own favour was not admissible against the appellant. On the other hand, the trial court has pointed out at page (?) of its judgment that the receipts produced by the tenant clearly show that the rent used to be paid from year to year. Exhibits 24 to 26 pertained to the rent paid on an yearly basis right from 1959 to May 31, 1961. On point of fact, therefore, we are satisfied that in the instant case the lease was from year to year and, therefore, a months notice was not legal if the lease was for a manufacturing purpose.7. The second point which arises for decision is as to the purpose of the lease. This point is no. longer res integra and is concluded by a clear authority of this Court in Allenburry Engineers Private Ltd. v. Ramakrishna Dalmia, (1973) 2 SCR 257 : (AIR 1973 SC 425 ) where this Court has laid down that the expression "manufacturing purposes" in S. 106 of the T. P. Act must be used in its popular and dictionary meaning as the statute has not defined the word "manufacturing purposes". We might state that in the present set up of our socialistic pattern of society when our country has made strong strides in various spheres of industrial activities an industrial venture must be given the most liberal interpretation so as to subserve the object of the statute. Of course the burden of proof whether the purpose of the lease was a manufacturing purpose would be on the defendant but we are satisfied that the defendant in this case has amply discharged its onus. In the aforesaid case this Court observed as follows (at p. 427 of AIR) :"The word manufacture, according to its dictionary meaning, is the making of articles or material (now on large scale) by physical labour or mechanical power. (Shorter Oxford English Dictionary, Vol. I 1203). According to the Permanent Edition of Words and Phrases Vol. 26, manufacture implies a change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use."8. In coming to this conclusion this Court relied on two of its earlier decisions in South Bihar Sugar Mills v. Union of India, (1968) 3 SCR 21 : (AIR 1968 SC 922 ) and Union of India v. Delhi Cloth and General Mills, (1963) Supp 1 SCR 586 : (AIR 1963 SC 791 ). Even before the decision of this Court, B. K. Mukherjea, J. (as he then was) who was later elevated to the Bench of this Court and retired as Chief Justice of India observed in Joyanti Hosiery Mills v. Upendra Chandra Das, AIR 1946 Cal 317 as follows :To manufacture, according to its Dictionary meaning means "to work up materials into forms suitable for use". The word material" does not necessarily mean the original raw material for a finished article may have to go through several manufacturing processes before it is fit and made ready for the market. What is itself a manufactured commodity may constitute a "material" for working it up into a different product. "Thus, for example for the tanner, the material would be the raw hide, but the leather itself a manufactured article would constitute the material for the shoemakers business, and we cannot say that the shoe-makers are not manufacturers because they do not work on raw hides."9. In the case of John Augustine Peter Mirande v. N. Datha Naik, AIR 1971 Mys 365, the Mysore High Court following the Calcutta decision held that the lease in that case, which was a case of saw mill, was for manufacturing purposes. We might observe that so far as the present case, where the mill is a flour mill, stands higher than the facts of the case in Mysore case (supra).10. Coming now to the tests laid down by this Court the position may be summarised as follows :1. That it must be proved that a certain commodity was produced :2. That the process of production must involve either labour or machinery;3. That the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words, the commodity should be so transformed so as to lose its original character.11. In the instant case what happened was that wheat, was transformed, by the manufacturing process which involved both labour and machinery, into flour. The commodity before manufacture was wheat which could not be consumed by any human being but would be used only for cattles or medicine or other similar purposes. The end product would be flour which was fit for human consumption and is used by all persons and its complexion has been completely changed. The name of the commodity after the product came into existence is Atta and not Gehun (wheat). Thus in the instant case all the three tests have been fully satisfied. This being the position the irresistible inference and the inescapable conclusion would be that the present lease was one for manufacturing purposes. In this view of the matter, the notice of one month must be held to be invalid and suit for ejectment should have failed on that ground. | 1[ds]6. Reliance was placed by the District Judge on the counterfoil where the plaintiff-landlord tried to make out a case of monthly tenancy but the entry in the counter-foil being an admission in his own favour was not admissible against the appellant. On the other hand, the trial court has pointed out at page (?) of its judgment that the receipts produced by the tenant clearly show that the rent used to be paid from year to year. Exhibits 24 to 26 pertained to the rent paid on an yearly basis right from 1959 to May 31, 1961. On point of fact, therefore, we are satisfied that in the instant case the lease was from year to year and, therefore, a months notice was not legal if the lease was for a manufacturing purpose.Coming now to the tests laid down by this Court the position may be summarised as followsThat it must be proved that a certain commodity was produced :2. That the process of production must involve either labour or machinery;3. That the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words, the commodity should be so transformed so as to lose its original character.In the instant case what happened was that wheat, was transformed, by the manufacturing process which involved both labour and machinery, into flour. The commodity before manufacture was wheat which could not be consumed by any human being but would be used only for cattles or medicine or other similar purposes. The end product would be flour which was fit for human consumption and is used by all persons and its complexion has been completely changed. The name of the commodity after the product came into existence is Atta and not Gehun (wheat). Thus in the instant case all the three tests have been fully satisfied. This being the position the irresistible inference and the inescapable conclusion would be that the present lease was one for manufacturing purposes. In this view of the matter, the notice of one month must be held to be invalid and suit for ejectment should have failed on thatpoint is no. longer res integra and is concluded by a clear authority of this Court in Allenburry Engineers Private Ltd. v. Ramakrishna Dalmia, (1973) 2 SCR 257 : (AIR 1973 SC 425 ) where this Court has laid down that the expression "manufacturing purposes" in S. 106 of the T. P. Act must be used in its popular and dictionary meaning as the statute has not defined the word "manufacturing purposes". We might state that in the present set up of our socialistic pattern of society when our country has made strong strides in various spheres of industrial activities an industrial venture must be given the most liberal interpretation so as to subserve the object of the statute. Of course the burden of proof whether the purpose of the lease was a manufacturing purpose would be on the defendant but we are satisfied that the defendant in this case has amply discharged its onus. In the aforesaid case this Court observed as follows (at p. 427 of AIR)word manufacture, according to its dictionary meaning, is the making of articles or material (now on large scale) by physical labour or mechanical power. (Shorter Oxford English Dictionary, Vol. I 1203). According to the Permanent Edition of Words and Phrases Vol. 26, manufacture implies a change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use." | 1 | 1,441 | 694 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
begin with the lease was given to the defendant in respect of an open piece of land,2. That on the open piece of land the appellant installed a flour mill and that the defendant was not using the land for any other purpose except running a flour mill.3. That the receipts filed by the tenant clearly show that the lease was doubtless a yearly one.6. Reliance was placed by the District Judge on the counterfoil where the plaintiff-landlord tried to make out a case of monthly tenancy but the entry in the counter-foil being an admission in his own favour was not admissible against the appellant. On the other hand, the trial court has pointed out at page (?) of its judgment that the receipts produced by the tenant clearly show that the rent used to be paid from year to year. Exhibits 24 to 26 pertained to the rent paid on an yearly basis right from 1959 to May 31, 1961. On point of fact, therefore, we are satisfied that in the instant case the lease was from year to year and, therefore, a months notice was not legal if the lease was for a manufacturing purpose.7. The second point which arises for decision is as to the purpose of the lease. This point is no. longer res integra and is concluded by a clear authority of this Court in Allenburry Engineers Private Ltd. v. Ramakrishna Dalmia, (1973) 2 SCR 257 : (AIR 1973 SC 425 ) where this Court has laid down that the expression "manufacturing purposes" in S. 106 of the T. P. Act must be used in its popular and dictionary meaning as the statute has not defined the word "manufacturing purposes". We might state that in the present set up of our socialistic pattern of society when our country has made strong strides in various spheres of industrial activities an industrial venture must be given the most liberal interpretation so as to subserve the object of the statute. Of course the burden of proof whether the purpose of the lease was a manufacturing purpose would be on the defendant but we are satisfied that the defendant in this case has amply discharged its onus. In the aforesaid case this Court observed as follows (at p. 427 of AIR) :"The word manufacture, according to its dictionary meaning, is the making of articles or material (now on large scale) by physical labour or mechanical power. (Shorter Oxford English Dictionary, Vol. I 1203). According to the Permanent Edition of Words and Phrases Vol. 26, manufacture implies a change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use."8. In coming to this conclusion this Court relied on two of its earlier decisions in South Bihar Sugar Mills v. Union of India, (1968) 3 SCR 21 : (AIR 1968 SC 922 ) and Union of India v. Delhi Cloth and General Mills, (1963) Supp 1 SCR 586 : (AIR 1963 SC 791 ). Even before the decision of this Court, B. K. Mukherjea, J. (as he then was) who was later elevated to the Bench of this Court and retired as Chief Justice of India observed in Joyanti Hosiery Mills v. Upendra Chandra Das, AIR 1946 Cal 317 as follows :To manufacture, according to its Dictionary meaning means "to work up materials into forms suitable for use". The word material" does not necessarily mean the original raw material for a finished article may have to go through several manufacturing processes before it is fit and made ready for the market. What is itself a manufactured commodity may constitute a "material" for working it up into a different product. "Thus, for example for the tanner, the material would be the raw hide, but the leather itself a manufactured article would constitute the material for the shoemakers business, and we cannot say that the shoe-makers are not manufacturers because they do not work on raw hides."9. In the case of John Augustine Peter Mirande v. N. Datha Naik, AIR 1971 Mys 365, the Mysore High Court following the Calcutta decision held that the lease in that case, which was a case of saw mill, was for manufacturing purposes. We might observe that so far as the present case, where the mill is a flour mill, stands higher than the facts of the case in Mysore case (supra).10. Coming now to the tests laid down by this Court the position may be summarised as follows :1. That it must be proved that a certain commodity was produced :2. That the process of production must involve either labour or machinery;3. That the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words, the commodity should be so transformed so as to lose its original character.11. In the instant case what happened was that wheat, was transformed, by the manufacturing process which involved both labour and machinery, into flour. The commodity before manufacture was wheat which could not be consumed by any human being but would be used only for cattles or medicine or other similar purposes. The end product would be flour which was fit for human consumption and is used by all persons and its complexion has been completely changed. The name of the commodity after the product came into existence is Atta and not Gehun (wheat). Thus in the instant case all the three tests have been fully satisfied. This being the position the irresistible inference and the inescapable conclusion would be that the present lease was one for manufacturing purposes. In this view of the matter, the notice of one month must be held to be invalid and suit for ejectment should have failed on that ground.
### Response:
1
### Explanation:
6. Reliance was placed by the District Judge on the counterfoil where the plaintiff-landlord tried to make out a case of monthly tenancy but the entry in the counter-foil being an admission in his own favour was not admissible against the appellant. On the other hand, the trial court has pointed out at page (?) of its judgment that the receipts produced by the tenant clearly show that the rent used to be paid from year to year. Exhibits 24 to 26 pertained to the rent paid on an yearly basis right from 1959 to May 31, 1961. On point of fact, therefore, we are satisfied that in the instant case the lease was from year to year and, therefore, a months notice was not legal if the lease was for a manufacturing purpose.Coming now to the tests laid down by this Court the position may be summarised as followsThat it must be proved that a certain commodity was produced :2. That the process of production must involve either labour or machinery;3. That the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words, the commodity should be so transformed so as to lose its original character.In the instant case what happened was that wheat, was transformed, by the manufacturing process which involved both labour and machinery, into flour. The commodity before manufacture was wheat which could not be consumed by any human being but would be used only for cattles or medicine or other similar purposes. The end product would be flour which was fit for human consumption and is used by all persons and its complexion has been completely changed. The name of the commodity after the product came into existence is Atta and not Gehun (wheat). Thus in the instant case all the three tests have been fully satisfied. This being the position the irresistible inference and the inescapable conclusion would be that the present lease was one for manufacturing purposes. In this view of the matter, the notice of one month must be held to be invalid and suit for ejectment should have failed on thatpoint is no. longer res integra and is concluded by a clear authority of this Court in Allenburry Engineers Private Ltd. v. Ramakrishna Dalmia, (1973) 2 SCR 257 : (AIR 1973 SC 425 ) where this Court has laid down that the expression "manufacturing purposes" in S. 106 of the T. P. Act must be used in its popular and dictionary meaning as the statute has not defined the word "manufacturing purposes". We might state that in the present set up of our socialistic pattern of society when our country has made strong strides in various spheres of industrial activities an industrial venture must be given the most liberal interpretation so as to subserve the object of the statute. Of course the burden of proof whether the purpose of the lease was a manufacturing purpose would be on the defendant but we are satisfied that the defendant in this case has amply discharged its onus. In the aforesaid case this Court observed as follows (at p. 427 of AIR)word manufacture, according to its dictionary meaning, is the making of articles or material (now on large scale) by physical labour or mechanical power. (Shorter Oxford English Dictionary, Vol. I 1203). According to the Permanent Edition of Words and Phrases Vol. 26, manufacture implies a change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use."
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The Maharashtra State Electricity Distribution Co. Ltd Vs. Lloyds Steel Industries Ltd | per then prevailing conditions of supply. However, the regular supply of 90 MVA was restored on the request of the respondent company. The supply of 90 MVA was restored in June, 2002 and thereafter a demand was raised in terms of letter dated 02.08.2001 for service line charges, which was agreed to be paid by the respondent company, but in installments. Aggrieved against the said order the respondent-company filed a petition before the Commission on the ground that the demand of Rs.227.9 lakhs so raised for reinstatement of contract demand of 90 MVA is not proper. An objection was raised before the Commission that the Commission has no jurisdiction in the matter in view of Section 42 of the Act and that the consumer should approach the Consumer Grievance Redressal Forum and thereafter, if still aggrieved, the Ombudsman created under the Act for redressal of their grievances. The Commission over-ruled this objection by making a reference to some decision of the Bombay High Court and proceeded to assume jurisdiction and directed the refund of the aforesaid amount to the respondent company.3. Aggrieved against the said order dated 18th October, 2005, the Maharashtra State Electricity Distribution Company Ltd. (hereinafter for short "MSEDCL") approached the Appellate Tribunal for Electricity created under the Act. The Appellate Tribunal vide its order dated 5th April, 2006 affirmed the order passed by the Commission. Thereafter a review petition was filed by the MSEDCL before the Appellate Tribunal, which was also rejected vide order dated 2nd June, 2006. Aggrieved against both these orders, the MSEDCL has approached this Court by the present appeal under Section 125 of the Act.4. We have heard learned counsel for the parties and perused the record.5. The basic question which arises for our consideration in this appeal is whether the individual consumer can approach the Commission under the Act or not. 6. For deciding this question, the relevant provision is Section 42(5) of the Act, which reads as under:- "42. Duties of distribution licensees and open access.-(1) x x x x x x(2) x x x x x x(3) x x x x x x(4) x x x x x x(5) Every distribution licensee shall, within six months from the appointed date or date of grant of licence, whichever is earlier, establish a forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission." 7. As per the aforesaid provision, if any grievance is made by a consumer, then they have a remedy under Section 42(5) of the Act and according to sub-section (5) every distribution licensee has to appoint a forum for redressal of grievances of the consumers. In exercise of this power the State has already framed The Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Ombudsman) Regulations, 2003 (hereinafter referred to as "2003 Regulations") and created Consumer Grievance Redressal Forum and Ombudsman. Under these 2003 Regulations a proper forum for redressal of the grievances of individual consumers has been created by the Commission. Therefore, now by virtue of sub-section (5) of Section 42 of the Act, all the individual grievances of consumers have to be raised before this forum only. In the face of this statutory provision we fail to understand how could the Commission acquire jurisdiction to decide the matter when a forum has been created under the Act for this purpose. The matter should have been left to the said forum. This question has already been considered and decided by a Division Bench of the Delhi High Court in the cases of Suresh Jindal Vs. BSES Rajdhani Power Ltd. & Ors. reported in 132 (2006) DLT 339 (DB) and Dheeraj Singh Vs. BSES Yamuna Power Ltd. and we approve of these decisions. It has been held in these decisions that the Forum and Ombudsman have power to grant interim orders. Thus a complete machinery has been provided in Section 42(5) and 42(6) for redressal of grievances of individual consumers. Hence wherever a Forum/Ombudsman have been created the consumers can only resort to these bodies for redressal of their grievances. Therefore, not much is required to be discussed on this issue. As the aforesaid two decisions correctly lay down the law when an individual consumer has a grievance he can approach the forum created under sub-section (5) of Section 42 of the Act. 8. In this connection, we may also refer to Section 86 of the Act which lays down the functions of the State Commission. Sub-Section (1) (f) of the said Section lays down the adjudicatory function of the State Commission which does not encompass within its domain complaints of individual consumers. It only provides that the Commission can adjudicate upon the disputes between the licensees and generating companies and to refer any such dispute for arbitration. This does not include in it an individual consumer. The proper forum for that is Section 42(5) and thereafter Section 42(6) read with Regulations of 2003 as referred to hereinabove.9. Therefore, in the facts and circumstances of the present case, we are of the opinion that the view taken by the Commission as well as the Appellate Authority are unsustainable and they have erred in coming to the conclusion that the Commission has jurisdiction. Consequently, we set aside the order dated 18th October, 2005 passed by the Commission and the orders dated 5th April, 2006 and 2nd June, 2006 passed by the Appellate Authority and remit the matter to the proper Forum created under Section 42(5) of the Act to decide the grievance of the respondent herein in accordance with law. We make it clear that we have not made any observation with regard to the merits of the demand raised by the appellant upon the respondent company and it will be open for the proper forum to adjudicate the same. The payment, if any, made by the company will not operate as an estoppel against the respondent company. We hope that the forum will decide the matter expeditiously. | 1[ds]8. In this connection, we may also refer to Section 86 of the Act which lays down the functions of the State Commission.(1) (f) of the said Section lays down the adjudicatory function of the State Commission which does not encompass within its domain complaints of individual consumers. It only provides that the Commission can adjudicate upon the disputes between the licensees and generating companies and to refer any such dispute for arbitration. This does not include in it an individual consumer. The proper forum for that is Section 42(5) and thereafter Section 42(6) read with Regulations of 2003 as referred to hereinabove.9. Therefore, in the facts and circumstances of the present case, we are of the opinion that the view taken by the Commission as well as the Appellate Authority are unsustainable and they have erred in coming to the conclusion that the Commission has jurisdiction. Consequently, we set aside the order dated 18th October, 2005 passed by the Commission and the orders dated 5th April, 2006 and 2nd June, 2006 passed by the Appellate Authority and remit the matter to the proper Forum created under Section 42(5) of the Act to decide the grievance of the respondent herein in accordance with law. We make it clear that we have not made any observation with regard to the merits of the demand raised by the appellant upon the respondent company and it will be open for the proper forum to adjudicate the same. The payment, if any, made by the company will not operate as an estoppel against the respondent company. We hope that the forum will decide the matter expeditiously. | 1 | 1,479 | 310 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
per then prevailing conditions of supply. However, the regular supply of 90 MVA was restored on the request of the respondent company. The supply of 90 MVA was restored in June, 2002 and thereafter a demand was raised in terms of letter dated 02.08.2001 for service line charges, which was agreed to be paid by the respondent company, but in installments. Aggrieved against the said order the respondent-company filed a petition before the Commission on the ground that the demand of Rs.227.9 lakhs so raised for reinstatement of contract demand of 90 MVA is not proper. An objection was raised before the Commission that the Commission has no jurisdiction in the matter in view of Section 42 of the Act and that the consumer should approach the Consumer Grievance Redressal Forum and thereafter, if still aggrieved, the Ombudsman created under the Act for redressal of their grievances. The Commission over-ruled this objection by making a reference to some decision of the Bombay High Court and proceeded to assume jurisdiction and directed the refund of the aforesaid amount to the respondent company.3. Aggrieved against the said order dated 18th October, 2005, the Maharashtra State Electricity Distribution Company Ltd. (hereinafter for short "MSEDCL") approached the Appellate Tribunal for Electricity created under the Act. The Appellate Tribunal vide its order dated 5th April, 2006 affirmed the order passed by the Commission. Thereafter a review petition was filed by the MSEDCL before the Appellate Tribunal, which was also rejected vide order dated 2nd June, 2006. Aggrieved against both these orders, the MSEDCL has approached this Court by the present appeal under Section 125 of the Act.4. We have heard learned counsel for the parties and perused the record.5. The basic question which arises for our consideration in this appeal is whether the individual consumer can approach the Commission under the Act or not. 6. For deciding this question, the relevant provision is Section 42(5) of the Act, which reads as under:- "42. Duties of distribution licensees and open access.-(1) x x x x x x(2) x x x x x x(3) x x x x x x(4) x x x x x x(5) Every distribution licensee shall, within six months from the appointed date or date of grant of licence, whichever is earlier, establish a forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission." 7. As per the aforesaid provision, if any grievance is made by a consumer, then they have a remedy under Section 42(5) of the Act and according to sub-section (5) every distribution licensee has to appoint a forum for redressal of grievances of the consumers. In exercise of this power the State has already framed The Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Ombudsman) Regulations, 2003 (hereinafter referred to as "2003 Regulations") and created Consumer Grievance Redressal Forum and Ombudsman. Under these 2003 Regulations a proper forum for redressal of the grievances of individual consumers has been created by the Commission. Therefore, now by virtue of sub-section (5) of Section 42 of the Act, all the individual grievances of consumers have to be raised before this forum only. In the face of this statutory provision we fail to understand how could the Commission acquire jurisdiction to decide the matter when a forum has been created under the Act for this purpose. The matter should have been left to the said forum. This question has already been considered and decided by a Division Bench of the Delhi High Court in the cases of Suresh Jindal Vs. BSES Rajdhani Power Ltd. & Ors. reported in 132 (2006) DLT 339 (DB) and Dheeraj Singh Vs. BSES Yamuna Power Ltd. and we approve of these decisions. It has been held in these decisions that the Forum and Ombudsman have power to grant interim orders. Thus a complete machinery has been provided in Section 42(5) and 42(6) for redressal of grievances of individual consumers. Hence wherever a Forum/Ombudsman have been created the consumers can only resort to these bodies for redressal of their grievances. Therefore, not much is required to be discussed on this issue. As the aforesaid two decisions correctly lay down the law when an individual consumer has a grievance he can approach the forum created under sub-section (5) of Section 42 of the Act. 8. In this connection, we may also refer to Section 86 of the Act which lays down the functions of the State Commission. Sub-Section (1) (f) of the said Section lays down the adjudicatory function of the State Commission which does not encompass within its domain complaints of individual consumers. It only provides that the Commission can adjudicate upon the disputes between the licensees and generating companies and to refer any such dispute for arbitration. This does not include in it an individual consumer. The proper forum for that is Section 42(5) and thereafter Section 42(6) read with Regulations of 2003 as referred to hereinabove.9. Therefore, in the facts and circumstances of the present case, we are of the opinion that the view taken by the Commission as well as the Appellate Authority are unsustainable and they have erred in coming to the conclusion that the Commission has jurisdiction. Consequently, we set aside the order dated 18th October, 2005 passed by the Commission and the orders dated 5th April, 2006 and 2nd June, 2006 passed by the Appellate Authority and remit the matter to the proper Forum created under Section 42(5) of the Act to decide the grievance of the respondent herein in accordance with law. We make it clear that we have not made any observation with regard to the merits of the demand raised by the appellant upon the respondent company and it will be open for the proper forum to adjudicate the same. The payment, if any, made by the company will not operate as an estoppel against the respondent company. We hope that the forum will decide the matter expeditiously.
### Response:
1
### Explanation:
8. In this connection, we may also refer to Section 86 of the Act which lays down the functions of the State Commission.(1) (f) of the said Section lays down the adjudicatory function of the State Commission which does not encompass within its domain complaints of individual consumers. It only provides that the Commission can adjudicate upon the disputes between the licensees and generating companies and to refer any such dispute for arbitration. This does not include in it an individual consumer. The proper forum for that is Section 42(5) and thereafter Section 42(6) read with Regulations of 2003 as referred to hereinabove.9. Therefore, in the facts and circumstances of the present case, we are of the opinion that the view taken by the Commission as well as the Appellate Authority are unsustainable and they have erred in coming to the conclusion that the Commission has jurisdiction. Consequently, we set aside the order dated 18th October, 2005 passed by the Commission and the orders dated 5th April, 2006 and 2nd June, 2006 passed by the Appellate Authority and remit the matter to the proper Forum created under Section 42(5) of the Act to decide the grievance of the respondent herein in accordance with law. We make it clear that we have not made any observation with regard to the merits of the demand raised by the appellant upon the respondent company and it will be open for the proper forum to adjudicate the same. The payment, if any, made by the company will not operate as an estoppel against the respondent company. We hope that the forum will decide the matter expeditiously.
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Shivagonda Subraigonda Patil And Ors Vs. Rudragonda Bhimagonda Patil And Anr | inams mentioned in it which categories do not include the service inams. There is another Sarsubha wat 4 of 1333 fasli issued on 28-3-24 for granting permission only to nawawala wajirdars, watandars to purchase lands from pot bhaubands. These two wats Nos. 4 of 1323 and 4 of 1333, it is said, vary the absolute prohibition against alienation by permitting patelki-watan service inam to be mortgaged like other service inams, though alienation would be void if it is made in favour of any one other than bhauband and without permission even to bhaubands. It was sought to be contended before the High Court and also before us that though initially under the Bombay Hereditary Offices Act III of 1874, which was made applicable to the State of Kolhapur by notification of 1297 fasli published in the Karvir State Gazette (Kolhapur) on 3-3-1888, Section 5 which prohibited the alienation if not made with the sanction of the government, was substituted by a subsequent amendment by Bombay Act V of 1866. This amended section, however, only prohibited alienations in any form in favour of any person who was not a bhauband beyond the natural lifetime of the watan holder. This amended provision also was applied to the Kolhapur State in the same way as the main Act was applied. It is, however, urged that the Bombay Watan Act and the amendment were only applied in spirit that is according to the obvious meaning or import unlike other Acts which were applied to the Kolhapur State in their entirety without any limitation. But the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258 at p. 259), observed:"The decision of this question has been made somewhat difficult by reason of the fact that in the State of Kolhapur the Watan Act has been made applicable in spirit and there are a large number of vat-hukums issued in respect of questions relating to inami lands from time to time......In dealing with the questions pertaining to the watans the courts in Kolhapur have therefore to consider this mass of vat-hukums and apply them to the facts before them. In doing so they have also to bear in mind the fact that the spirit of the Watan Act had also been made applicable to the State. Mr. Justice Madgavkar who presided over the Supreme Court at Kolhapur for several years strongly critised the application of the Watan Act in spirit only on the ground that he was unable to understand what such an application of the spirit of the Act really meant. Either an Act in any or all of its sections, applies, or it does not observed Madgavkar, J. "To apply it in the spirit but not in the letter is beyond the power of the courts....With respect we agree with this criticism made by Mr. Justice Madgavkar".What the Full Bench was dealing with was the question whether under the wat hukums of the Kolhapur State, the sanadi inam land which was impartible reverts to the State on the death of the holder, and after an examination of all the wat hukums it expressed the view that whatever the restrictions may be upon that land which does not make the property the absolute property of the watandar, that property does not revert to the State but descends to the next heir by the rule of primogeniture.We are not concerned with that aspect of the matter but only with the question whether the alienation in favour of the plaintiffs father was valid, and we think on the construction of the various wat hukums that it was not. We agree with the Full Bench that the Bombay Hereditary Offices Act (Watan Act) did not apply to the Kolhapur State so as to override the specific directions of the wat hukums which had legal and binding force in that State. It may be observed that notification of 3-3-1888 whereby certain laws in force in what was then British India were applied in toto with modifications but the Watan Act is applied only "to go according to the obvious meaning or import". What was perhaps intended was that where there were no specific hukums the general principles of the Watan Act may be applicable. At any rate in this case as there is a specific prohibition from alienating patel-ki-watan and other similar inams we need not rely on the provisions of the Bombay Act.5. On the other question namely whether the suit is barred by limitation, we are of the view that it is not. The facts as narrated will show that in one case possession was given to the plaintiffs widow after the mortgage was redeemed.But the Collector under a misapprehension effected a forfeiture and took possession but subsequently perhaps realising the mistake, released the property but handed over possession to the wrong person namely the defendant. It is only after that, that a right would accrue to the plaintiff to file a suit for ejectment and for recovery of possession on the ground of his title. There is no validity in the submission made on behalf of the defendant that the plaintiff was out of possession from 1928 till the date of suit - April 17, 1953. | 0[ds]5. On the other question namely whether the suit is barred by limitation, we are of the view that it is not. The facts as narrated will show that in one case possession was given to the plaintiffs widow after the mortgage was redeemed.But the Collector under a misapprehension effected a forfeiture and took possession but subsequently perhaps realising the mistake, released the property but handed over possession to the wrong person namely the defendant. It is only after that, that a right would accrue to the plaintiff to file a suit for ejectment and for recovery of possession on the ground of his title. There is no validity in the submission made on behalf of the defendant that the plaintiff was out of possession from 1928 till the date of suit - April 17,the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258 at p.the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258 at p.the Full Bench was dealing with was the question whether under the wat hukums of the Kolhapur State, the sanadi inam land which was impartible reverts to the State on the death of the holder, and after an examination of all the wat hukums it expressed the view that whatever the restrictions may be upon that land which does not make the property the absolute property of the watandar, that property does not revert to the State but descends to the next heir by the rule of primogeniture.We are not concerned with that aspect of the matter but only with the question whether the alienation in favour of the plaintiffs father was valid, and we think on the construction of the various wat hukums that it was not. We agree with the Full Bench that the Bombay Hereditary Offices Act (Watan Act) did not apply to the Kolhapur State so as to override the specific directions of the wat hukums which had legal and binding force in that State. It may be observed that notification ofwhereby certain laws in force in what was then British India were applied in toto with modifications but the Watan Act is applied only "to go according to the obvious meaning or import". What was perhaps intended was that where there were no specific hukums the general principles of the Watan Act may be applicable. At any rate in this case as there is a specific prohibition from alienatingand other similar inams we need not rely on the provisions of the Bombay Act. | 0 | 3,825 | 732 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
inams mentioned in it which categories do not include the service inams. There is another Sarsubha wat 4 of 1333 fasli issued on 28-3-24 for granting permission only to nawawala wajirdars, watandars to purchase lands from pot bhaubands. These two wats Nos. 4 of 1323 and 4 of 1333, it is said, vary the absolute prohibition against alienation by permitting patelki-watan service inam to be mortgaged like other service inams, though alienation would be void if it is made in favour of any one other than bhauband and without permission even to bhaubands. It was sought to be contended before the High Court and also before us that though initially under the Bombay Hereditary Offices Act III of 1874, which was made applicable to the State of Kolhapur by notification of 1297 fasli published in the Karvir State Gazette (Kolhapur) on 3-3-1888, Section 5 which prohibited the alienation if not made with the sanction of the government, was substituted by a subsequent amendment by Bombay Act V of 1866. This amended section, however, only prohibited alienations in any form in favour of any person who was not a bhauband beyond the natural lifetime of the watan holder. This amended provision also was applied to the Kolhapur State in the same way as the main Act was applied. It is, however, urged that the Bombay Watan Act and the amendment were only applied in spirit that is according to the obvious meaning or import unlike other Acts which were applied to the Kolhapur State in their entirety without any limitation. But the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258 at p. 259), observed:"The decision of this question has been made somewhat difficult by reason of the fact that in the State of Kolhapur the Watan Act has been made applicable in spirit and there are a large number of vat-hukums issued in respect of questions relating to inami lands from time to time......In dealing with the questions pertaining to the watans the courts in Kolhapur have therefore to consider this mass of vat-hukums and apply them to the facts before them. In doing so they have also to bear in mind the fact that the spirit of the Watan Act had also been made applicable to the State. Mr. Justice Madgavkar who presided over the Supreme Court at Kolhapur for several years strongly critised the application of the Watan Act in spirit only on the ground that he was unable to understand what such an application of the spirit of the Act really meant. Either an Act in any or all of its sections, applies, or it does not observed Madgavkar, J. "To apply it in the spirit but not in the letter is beyond the power of the courts....With respect we agree with this criticism made by Mr. Justice Madgavkar".What the Full Bench was dealing with was the question whether under the wat hukums of the Kolhapur State, the sanadi inam land which was impartible reverts to the State on the death of the holder, and after an examination of all the wat hukums it expressed the view that whatever the restrictions may be upon that land which does not make the property the absolute property of the watandar, that property does not revert to the State but descends to the next heir by the rule of primogeniture.We are not concerned with that aspect of the matter but only with the question whether the alienation in favour of the plaintiffs father was valid, and we think on the construction of the various wat hukums that it was not. We agree with the Full Bench that the Bombay Hereditary Offices Act (Watan Act) did not apply to the Kolhapur State so as to override the specific directions of the wat hukums which had legal and binding force in that State. It may be observed that notification of 3-3-1888 whereby certain laws in force in what was then British India were applied in toto with modifications but the Watan Act is applied only "to go according to the obvious meaning or import". What was perhaps intended was that where there were no specific hukums the general principles of the Watan Act may be applicable. At any rate in this case as there is a specific prohibition from alienating patel-ki-watan and other similar inams we need not rely on the provisions of the Bombay Act.5. On the other question namely whether the suit is barred by limitation, we are of the view that it is not. The facts as narrated will show that in one case possession was given to the plaintiffs widow after the mortgage was redeemed.But the Collector under a misapprehension effected a forfeiture and took possession but subsequently perhaps realising the mistake, released the property but handed over possession to the wrong person namely the defendant. It is only after that, that a right would accrue to the plaintiff to file a suit for ejectment and for recovery of possession on the ground of his title. There is no validity in the submission made on behalf of the defendant that the plaintiff was out of possession from 1928 till the date of suit - April 17, 1953.
### Response:
0
### Explanation:
5. On the other question namely whether the suit is barred by limitation, we are of the view that it is not. The facts as narrated will show that in one case possession was given to the plaintiffs widow after the mortgage was redeemed.But the Collector under a misapprehension effected a forfeiture and took possession but subsequently perhaps realising the mistake, released the property but handed over possession to the wrong person namely the defendant. It is only after that, that a right would accrue to the plaintiff to file a suit for ejectment and for recovery of possession on the ground of his title. There is no validity in the submission made on behalf of the defendant that the plaintiff was out of possession from 1928 till the date of suit - April 17,the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258 at p.the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258 at p.the Full Bench was dealing with was the question whether under the wat hukums of the Kolhapur State, the sanadi inam land which was impartible reverts to the State on the death of the holder, and after an examination of all the wat hukums it expressed the view that whatever the restrictions may be upon that land which does not make the property the absolute property of the watandar, that property does not revert to the State but descends to the next heir by the rule of primogeniture.We are not concerned with that aspect of the matter but only with the question whether the alienation in favour of the plaintiffs father was valid, and we think on the construction of the various wat hukums that it was not. We agree with the Full Bench that the Bombay Hereditary Offices Act (Watan Act) did not apply to the Kolhapur State so as to override the specific directions of the wat hukums which had legal and binding force in that State. It may be observed that notification ofwhereby certain laws in force in what was then British India were applied in toto with modifications but the Watan Act is applied only "to go according to the obvious meaning or import". What was perhaps intended was that where there were no specific hukums the general principles of the Watan Act may be applicable. At any rate in this case as there is a specific prohibition from alienatingand other similar inams we need not rely on the provisions of the Bombay Act.
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Commissioner of Income Tax, Bihar Vs. Smt. Durgabati and Another | KAPUR J.1. The Commissioner of Income-tax, Bihar, has brought this appeal on a certificate of the High Court of Patna against the judgment and order of that court in which the main question which will be presently set out was decided against the appellant. The facts of this appeal are that two ladies Smt. Durgabati and Smt. Narmadabala Gupta were carrying on coal mining business as co-owners up to the assessment year 1942-43. On April 21, 1943, the two ladies entered into a deed of partnership, one of the terms of which was, that the death of any one of the partners will not dissolve the partnership and that on such an event happening the sons and grandsons of the deceased partner would automatically become partners and the partnership would be deemed to be continued and would continue. Durgabati died on May 27, 1943, leaving a will by which she bequeathed her share in the business to her minor sons Dina Nath Agarwala and Basudeo Prasad Agarwala in equal shares. For the assessment year 1944-45 an application was made under section 26A of the Income-tax Act hereinafter termed as the " Act " for registration of the firm. The application was on behalf of Smt. Narmadabala Gupta, 8as. share, Dina Nath Agarwala and Basudeo Prasad Agarwala, 4as. share each. This application was allowed. For the following two years another application was made but it was rejected by the Income-tax Officer and on appeal it was granted and the firm was registered for that year and also for the assessment year 1946-47 and assessment was made on the partnership firm under section 23(5) of the Act. (sic.) Sometime in 1951 the Commissioner of Income-tax acting under section 33B of the Act cancelled the registration for all the three years and directed the Income-tax Officer to determine the tax on the basis that no registration had been granted to the firm. An appeal was taken to the Appellate Tribunal which was dismissed. Four questions of law were submitted for the opinion of the High Court which were as follows " 1. Whether the Commissioner of Income-tax could revise under section 33B the order passed by the Income-tax Officer on September 24, 1949, in respect of the assessment year 1947-48 ?2. Whether Smt. Narmadabala Gupta, Dina Nath Agarwala and Basudeo Prasad Agarwala constituted a firm for the purposes of section 26A of the Act ?3. Whether the individual shares of Dina Nath Agarwala and Basudeo Prasad Agarwala could be held to have been specified in the deed dated April 21, 1943 ?4. Whether in the facts and the circumstances of the case the order passed by the Commissioner of Income-tax cancelling the orders of the Income-tax Officer granting registration of the firm and directing the Income-tax Officer to determine the tax payable by the firm on the basis that no registration had been granted to the firm, were valid in law ? "2. The reference was heard by Ramaswami and Misra JJ. The first question was not pressed and was decided against the assessee. The second question was also decided against the assessee on merits. The third was held to be academic in view of the decision on the first two questions. Question No. 4 alone was argued and there was difference of opinion between the learned judges constituting the Bench. Ramaswami J. was of the opinion that it should be answered against the assessee but Misra J. was of the contrary opinion. That matter was therefore heard by S. K. Das C. J. (as he then was) and he agreed with Misra J. and the question was decided in favour of the assessee, i.e., the respondent, and against that judgment and order this appeal has been brought by the Commissioner of Income-tax on a certificate of the High Court and the only question that survives for decision therefore is the fourth question, the decision on which was against the appellant3. The judgment of the majority was based on the decision of Commissioner of Income-tax v. Amritlal Bhogilal & Co. which on appeal to this court was reversed and is reported as Commissioner of Income-tax v. Amritlal Bhogilal & Co. In view of that decision the appeal of the Commissioner of Income-tax must be allowed and the judgment and order of the High Court set aside. | 1[ds]3. The judgment of the majority was based on the decision of Commissioner ofv. Amritlal Bhogilal & Co. which on appeal to this court was reversed and is reported as Commissioner ofv. Amritlal Bhogilal & Co. In view of that decision the appeal of the Commissioner ofmust be allowed and the judgment and order of the High Court set aside. | 1 | 788 | 69 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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KAPUR J.1. The Commissioner of Income-tax, Bihar, has brought this appeal on a certificate of the High Court of Patna against the judgment and order of that court in which the main question which will be presently set out was decided against the appellant. The facts of this appeal are that two ladies Smt. Durgabati and Smt. Narmadabala Gupta were carrying on coal mining business as co-owners up to the assessment year 1942-43. On April 21, 1943, the two ladies entered into a deed of partnership, one of the terms of which was, that the death of any one of the partners will not dissolve the partnership and that on such an event happening the sons and grandsons of the deceased partner would automatically become partners and the partnership would be deemed to be continued and would continue. Durgabati died on May 27, 1943, leaving a will by which she bequeathed her share in the business to her minor sons Dina Nath Agarwala and Basudeo Prasad Agarwala in equal shares. For the assessment year 1944-45 an application was made under section 26A of the Income-tax Act hereinafter termed as the " Act " for registration of the firm. The application was on behalf of Smt. Narmadabala Gupta, 8as. share, Dina Nath Agarwala and Basudeo Prasad Agarwala, 4as. share each. This application was allowed. For the following two years another application was made but it was rejected by the Income-tax Officer and on appeal it was granted and the firm was registered for that year and also for the assessment year 1946-47 and assessment was made on the partnership firm under section 23(5) of the Act. (sic.) Sometime in 1951 the Commissioner of Income-tax acting under section 33B of the Act cancelled the registration for all the three years and directed the Income-tax Officer to determine the tax on the basis that no registration had been granted to the firm. An appeal was taken to the Appellate Tribunal which was dismissed. Four questions of law were submitted for the opinion of the High Court which were as follows " 1. Whether the Commissioner of Income-tax could revise under section 33B the order passed by the Income-tax Officer on September 24, 1949, in respect of the assessment year 1947-48 ?2. Whether Smt. Narmadabala Gupta, Dina Nath Agarwala and Basudeo Prasad Agarwala constituted a firm for the purposes of section 26A of the Act ?3. Whether the individual shares of Dina Nath Agarwala and Basudeo Prasad Agarwala could be held to have been specified in the deed dated April 21, 1943 ?4. Whether in the facts and the circumstances of the case the order passed by the Commissioner of Income-tax cancelling the orders of the Income-tax Officer granting registration of the firm and directing the Income-tax Officer to determine the tax payable by the firm on the basis that no registration had been granted to the firm, were valid in law ? "2. The reference was heard by Ramaswami and Misra JJ. The first question was not pressed and was decided against the assessee. The second question was also decided against the assessee on merits. The third was held to be academic in view of the decision on the first two questions. Question No. 4 alone was argued and there was difference of opinion between the learned judges constituting the Bench. Ramaswami J. was of the opinion that it should be answered against the assessee but Misra J. was of the contrary opinion. That matter was therefore heard by S. K. Das C. J. (as he then was) and he agreed with Misra J. and the question was decided in favour of the assessee, i.e., the respondent, and against that judgment and order this appeal has been brought by the Commissioner of Income-tax on a certificate of the High Court and the only question that survives for decision therefore is the fourth question, the decision on which was against the appellant3. The judgment of the majority was based on the decision of Commissioner of Income-tax v. Amritlal Bhogilal & Co. which on appeal to this court was reversed and is reported as Commissioner of Income-tax v. Amritlal Bhogilal & Co. In view of that decision the appeal of the Commissioner of Income-tax must be allowed and the judgment and order of the High Court set aside.
### Response:
1
### Explanation:
3. The judgment of the majority was based on the decision of Commissioner ofv. Amritlal Bhogilal & Co. which on appeal to this court was reversed and is reported as Commissioner ofv. Amritlal Bhogilal & Co. In view of that decision the appeal of the Commissioner ofmust be allowed and the judgment and order of the High Court set aside.
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Commissioner Of Income Tax, Bombay Vs. Finlay Mills Ltd | and altered asset by that process. So long as the machinery lasts, the improvement continues to the advantage of the owner of the machinery. The replacement of a dilapidated roof by a more substantial roof stands on the same footing. The result however of the Trade Marks Act is only two-fold. By registration, the owner is absolved from the obligation to prove his ownership of the trade mark. It is treated as prima facie proved on production of the registration certificate. It thus merely saves him the trouble of leading evidence, in the event of a suit, in a Court of law, to prove his title to the trade mark. It has been said that registration is in the nature of collateral security furnishing the trader with a cheaper and more direct remedy against infringers. Cancel the registration and he has still his right enforceable at Common Law to estrain the piracy of his trade mark. In our opinion, this is neither such an asset nor an adventage so as to make payment for its registration a capital expenditure. In this connection it may be useful to notice that expenditure incurred by a company in defending title to property is not considered expense of a capital nature. In Southern (H M Inspector of Taxes ) v. Borax Consolidated Ltd.,10 I. T R. Sup. 1,it is there stated that where a sum of money is laid out for the acquisition or the improvement of a fixed capital asset it is attributable to capital but of no alteration is made in the fixed capital asset by the payment, then it is properly attributable to revenue, being in substance a matter of maintenance, the maintenance of the capital structure or the capital asset of the company. In our opinion, the advantage derived by the owner of the trade mark by registration falls within this class of expenditure. The fact that a trade mark after registration could be separately assigned, and not as a part of the good will of the business only, does not also make the expenditure for registration a capital expenditure, That is only an additional and incidental facility given to the owner of the trade mark. It adds nothing to the trade mark itself.5. In the judgment of the High Court some emphasis is laid on the fact that by reason of registration the duration of the trade mark is only for seven years, and it does not thus possess that permanency which is ordinarily required of an expenditure to make it a capital expenditure and in order to prove the existence of a benefit of an enduring character. The learned Attorney-General contended that the view that the benefit of registration lasted for seven years, i.e., for a limited period, prevented the expenses of registration being treated as capital expenditure is unsound and for that contention he relied onHenriksen (Inspector of Taxes) v. Grafion Hotel Ltd.,1942-2 K. B 184. In that case, tenants of licensing premises by agreement with the landlord paid by installment the monopoly value fixed by the licensing justices when granting the licence under S.14, Licensing (Consolidation) Act. 1910. These were sought to be deducted as revenue expenditure but were disallowed by the Court Lord Greene M. R. first considered that the payment fell into the same class as the payment of a premium on the grant of a lease or the expenditure on improvements to the property which justices may require to be made as a condition of granting a licence. Having reached that conclusion he rejected the argument that the payment not being made in one lump sum but by instalments made a difference in the character of the payment. He observed as follows :"Whenever a licence is granted for a term, the payment is made as on a purchase of a monopoly for that term. When a licence is granted for a subsequent term, the monopoly value must be paid in respect of that term and so on. The payments are recurrent if the licence is renewed, they are not periodical so as to give them the quality of payments which ought to be debited to revenue account. The thing that is paid for is of a permanent quality although its permanence, being conditioned by the length of the term is short-lived. A payment of this character appears to me to fall into the same class as the payment of a premium on the grant at a lease, which is admittedly not deductible."The Attorney-General relied on those observations to point out that the permanence of the advantage was thus not dependant on the number of years for which it was to enure for the benefit of the proprietor of the trade mark. In our opinion these observations have to be read in the context in which they have been made. The learned Master of the Rolls was discussing only the question of payment being made by instalments as not making any difference in the nature of the expenditure. It was first held by him that the payment in question was of a capital nature and of the same character as premium paid on the grant of a lease and was, therefore, necessarily of a capital nature. Having come to that conclusion he only rejected the contention that because the premium was paid in more instalments than one it lost its character of a capital expenditure. In our opinion, this is an entirely different thing from stating that the fact of the advantage being for a limited time altered the character of the payment in any way. As observed by Viscount Cave, L. C. the question is always one of fact depending on the circumstances of each case individually.6. In our opinion, the decision of the High Court reported in Commissioner of Income-tax Bombay v. The Century Spinning and Weaving and Manufacturing Co. Ltd.,(1947) 15 I. T. R. 105 (Bom.) is correct and in the present case also the contention of the appellant must fail. | 0[ds]4. In our opinion, the contention urged on behalf of the appellant must fail. It is not contended that by the Trade Marks Act a new asset has come into existence. It was contended that an advantage of an enduring nature had come intoour opinion, this analogy is fallacious. The machinery which acquires a greater productive capacity by reason of its improvement by the inclusion of some new invention naturally becomes a new and altered asset by that process. So long as the machinery lasts, the improvement continues to the advantage of the owner of the machinery. The replacement of a dilapidated roof by a more substantial roof stands on the same footing. The result however of the Trade Marks Act is only two-fold. By registration, the owner is absolved from the obligation to prove his ownership of the trade mark. It is treated as prima facie proved on production of the registration certificate. It thus merely saves him the trouble of leading evidence, in the event of a suit, in a Court of law, to prove his title to the trade mark. It has been said that registration is in the nature of collateral security furnishing the trader with a cheaper and more direct remedy against infringers. Cancel the registration and he has still his right enforceable at Common Law to estrain the piracy of his trade mark. In our opinion, this is neither such an asset nor an adventage so as to make payment for its registration a capital expenditure. In this connection it may be useful to notice that expenditure incurred by a company in defending title to property is not considered expense of a capital nature. In Southern (H M Inspector of Taxes ) v. Borax Consolidated Ltd.,10 I. T R. Sup. 1,it is there stated that where a sum of money is laid out for the acquisition or the improvement of a fixed capital asset it is attributable to capital but of no alteration is made in the fixed capital asset by the payment, then it is properly attributable to revenue, being in substance a matter of maintenance, the maintenance of the capital structure or the capital asset of the company. In our opinion, the advantage derived by the owner of the trade mark by registration falls within this class of expenditure. The fact that a trade mark after registration could be separately assigned, and not as a part of the good will of the business only, does not also make the expenditure for registration a capital expenditure, That is only an additional and incidental facility given to the owner of the trade mark. It adds nothing to the trade markAttorney-General relied on those observations to point out that the permanence of the advantage was thus not dependant on the number of years for which it was to enure for the benefit of the proprietor of the trade mark. In our opinion these observations have to be read in the context in which they have been made. The learned Master of the Rolls was discussing only the question of payment being made by instalments as not making any difference in the nature of the expenditure. It was first held by him that the payment in question was of a capital nature and of the same character as premium paid on the grant of a lease and was, therefore, necessarily of a capital nature. Having come to that conclusion he only rejected the contention that because the premium was paid in more instalments than one it lost its character of a capital expenditure. In our opinion, this is an entirely different thing from stating that the fact of the advantage being for a limited time altered the character of the payment in any way. As observed by Viscount Cave, L. C. the question is always one of fact depending on the circumstances of each case individually.In our opinion, the decision of the High Court reported in Commissioner of Income-tax Bombay v. The Century Spinning and Weaving and Manufacturing Co. Ltd.,(1947) 15 I. T. R. 105 (Bom.) is correct and in the present case also the contention of the appellant must fail. | 0 | 2,330 | 755 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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and altered asset by that process. So long as the machinery lasts, the improvement continues to the advantage of the owner of the machinery. The replacement of a dilapidated roof by a more substantial roof stands on the same footing. The result however of the Trade Marks Act is only two-fold. By registration, the owner is absolved from the obligation to prove his ownership of the trade mark. It is treated as prima facie proved on production of the registration certificate. It thus merely saves him the trouble of leading evidence, in the event of a suit, in a Court of law, to prove his title to the trade mark. It has been said that registration is in the nature of collateral security furnishing the trader with a cheaper and more direct remedy against infringers. Cancel the registration and he has still his right enforceable at Common Law to estrain the piracy of his trade mark. In our opinion, this is neither such an asset nor an adventage so as to make payment for its registration a capital expenditure. In this connection it may be useful to notice that expenditure incurred by a company in defending title to property is not considered expense of a capital nature. In Southern (H M Inspector of Taxes ) v. Borax Consolidated Ltd.,10 I. T R. Sup. 1,it is there stated that where a sum of money is laid out for the acquisition or the improvement of a fixed capital asset it is attributable to capital but of no alteration is made in the fixed capital asset by the payment, then it is properly attributable to revenue, being in substance a matter of maintenance, the maintenance of the capital structure or the capital asset of the company. In our opinion, the advantage derived by the owner of the trade mark by registration falls within this class of expenditure. The fact that a trade mark after registration could be separately assigned, and not as a part of the good will of the business only, does not also make the expenditure for registration a capital expenditure, That is only an additional and incidental facility given to the owner of the trade mark. It adds nothing to the trade mark itself.5. In the judgment of the High Court some emphasis is laid on the fact that by reason of registration the duration of the trade mark is only for seven years, and it does not thus possess that permanency which is ordinarily required of an expenditure to make it a capital expenditure and in order to prove the existence of a benefit of an enduring character. The learned Attorney-General contended that the view that the benefit of registration lasted for seven years, i.e., for a limited period, prevented the expenses of registration being treated as capital expenditure is unsound and for that contention he relied onHenriksen (Inspector of Taxes) v. Grafion Hotel Ltd.,1942-2 K. B 184. In that case, tenants of licensing premises by agreement with the landlord paid by installment the monopoly value fixed by the licensing justices when granting the licence under S.14, Licensing (Consolidation) Act. 1910. These were sought to be deducted as revenue expenditure but were disallowed by the Court Lord Greene M. R. first considered that the payment fell into the same class as the payment of a premium on the grant of a lease or the expenditure on improvements to the property which justices may require to be made as a condition of granting a licence. Having reached that conclusion he rejected the argument that the payment not being made in one lump sum but by instalments made a difference in the character of the payment. He observed as follows :"Whenever a licence is granted for a term, the payment is made as on a purchase of a monopoly for that term. When a licence is granted for a subsequent term, the monopoly value must be paid in respect of that term and so on. The payments are recurrent if the licence is renewed, they are not periodical so as to give them the quality of payments which ought to be debited to revenue account. The thing that is paid for is of a permanent quality although its permanence, being conditioned by the length of the term is short-lived. A payment of this character appears to me to fall into the same class as the payment of a premium on the grant at a lease, which is admittedly not deductible."The Attorney-General relied on those observations to point out that the permanence of the advantage was thus not dependant on the number of years for which it was to enure for the benefit of the proprietor of the trade mark. In our opinion these observations have to be read in the context in which they have been made. The learned Master of the Rolls was discussing only the question of payment being made by instalments as not making any difference in the nature of the expenditure. It was first held by him that the payment in question was of a capital nature and of the same character as premium paid on the grant of a lease and was, therefore, necessarily of a capital nature. Having come to that conclusion he only rejected the contention that because the premium was paid in more instalments than one it lost its character of a capital expenditure. In our opinion, this is an entirely different thing from stating that the fact of the advantage being for a limited time altered the character of the payment in any way. As observed by Viscount Cave, L. C. the question is always one of fact depending on the circumstances of each case individually.6. In our opinion, the decision of the High Court reported in Commissioner of Income-tax Bombay v. The Century Spinning and Weaving and Manufacturing Co. Ltd.,(1947) 15 I. T. R. 105 (Bom.) is correct and in the present case also the contention of the appellant must fail.
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4. In our opinion, the contention urged on behalf of the appellant must fail. It is not contended that by the Trade Marks Act a new asset has come into existence. It was contended that an advantage of an enduring nature had come intoour opinion, this analogy is fallacious. The machinery which acquires a greater productive capacity by reason of its improvement by the inclusion of some new invention naturally becomes a new and altered asset by that process. So long as the machinery lasts, the improvement continues to the advantage of the owner of the machinery. The replacement of a dilapidated roof by a more substantial roof stands on the same footing. The result however of the Trade Marks Act is only two-fold. By registration, the owner is absolved from the obligation to prove his ownership of the trade mark. It is treated as prima facie proved on production of the registration certificate. It thus merely saves him the trouble of leading evidence, in the event of a suit, in a Court of law, to prove his title to the trade mark. It has been said that registration is in the nature of collateral security furnishing the trader with a cheaper and more direct remedy against infringers. Cancel the registration and he has still his right enforceable at Common Law to estrain the piracy of his trade mark. In our opinion, this is neither such an asset nor an adventage so as to make payment for its registration a capital expenditure. In this connection it may be useful to notice that expenditure incurred by a company in defending title to property is not considered expense of a capital nature. In Southern (H M Inspector of Taxes ) v. Borax Consolidated Ltd.,10 I. T R. Sup. 1,it is there stated that where a sum of money is laid out for the acquisition or the improvement of a fixed capital asset it is attributable to capital but of no alteration is made in the fixed capital asset by the payment, then it is properly attributable to revenue, being in substance a matter of maintenance, the maintenance of the capital structure or the capital asset of the company. In our opinion, the advantage derived by the owner of the trade mark by registration falls within this class of expenditure. The fact that a trade mark after registration could be separately assigned, and not as a part of the good will of the business only, does not also make the expenditure for registration a capital expenditure, That is only an additional and incidental facility given to the owner of the trade mark. It adds nothing to the trade markAttorney-General relied on those observations to point out that the permanence of the advantage was thus not dependant on the number of years for which it was to enure for the benefit of the proprietor of the trade mark. In our opinion these observations have to be read in the context in which they have been made. The learned Master of the Rolls was discussing only the question of payment being made by instalments as not making any difference in the nature of the expenditure. It was first held by him that the payment in question was of a capital nature and of the same character as premium paid on the grant of a lease and was, therefore, necessarily of a capital nature. Having come to that conclusion he only rejected the contention that because the premium was paid in more instalments than one it lost its character of a capital expenditure. In our opinion, this is an entirely different thing from stating that the fact of the advantage being for a limited time altered the character of the payment in any way. As observed by Viscount Cave, L. C. the question is always one of fact depending on the circumstances of each case individually.In our opinion, the decision of the High Court reported in Commissioner of Income-tax Bombay v. The Century Spinning and Weaving and Manufacturing Co. Ltd.,(1947) 15 I. T. R. 105 (Bom.) is correct and in the present case also the contention of the appellant must fail.
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Union Of India Vs. Rakesh Kumar | i.e. Rule 107, which empowers Pension Sanctioning Authority to approach the Ministry of Railways(Railway Board) for dispensing with or relaxing the requirement of any Rule operation of which causes hardship in any particular case. Rule 107 is quoted as below:107. Power to relax - Where the pension sanctioning authority is satisfied that the operation of any of these rules causes undue hardship in any particular case, that authority, may for reasons to be recorded in writing, approach the Ministry of Railways (Railway Board) for dispensing with or relaxing the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. The Ministry of Railways(Railway Board) shall examine each such case and arrange to communicate the sanction of the President to the proposed dispensation or relaxation as it may consider necessary keeping in view the merits of each case and keeping in view of an other statutory provisions: Provided that no such order shall be made without concurrence of the Department of Pension and Pensioners Welfare, in the Ministry of Personnel, Public Grievances and Pensions, Government of India. 50. Thus, in cases of those railway servants who are not eligible as per existing rules for grant of pension and there are certain mitigating circumstances which require consideration for relaxation the proposals can be forwarded by Pension Sanctioning Authority to Railway Board in an individual or group of cases. We, thus, while allowing this appeal and setting aside the judgment of the High Court leave it open to the Pension Sanctioning Authority to recommend for grant of relaxation under Rule 107 in deserving cases. 51. Shri M.C.Dhingra, learned counsel for the respondent referred to case in Punjab State Electricity Board & Another v. Narata Singh & Another, 2010 (4) SCC 317 . In the above case, the issue for consideration was as to whether work-charged services rendered by respondent in the Department of Punjab State can be counted for the purpose of calculating qualifying service for pension payable to him as an employee of the Punjab State Electricity Board. The High Court has issued directions for counting the services rendered in the Irrigation Department of the State of Punjab for calculating pension of the respondent in Punjab State Electricity Board. Punjab State Electricity Board aggrieved by the judgment, filed SLP before this Court. This Court noticed that in the above judgment the Punjab State Electricity Board has adopted earlier decisions in which pensionary liability in respect of temporary services rendered in the Government of India and State Government were taken into consideration. Para 19 and para 20 of judgment as cited below:19. The above-mentioned policy decisions taken by the Central Government and the Government of Punjab were taken into consideration by the Board which issued a Memo dated 25-11-1985 with reference to the subject of allocation of pensionary liability in respect of temporary service rendered in the Government of India and the State Government and adopted the policy decision reflected in the Letter dated 20.05.1982 of the Government of Punjab, w.e.f. 31.03.1982 as per the instructions and conditions stipulated in the said letter. This is quite evident from Memo No. 257861/8761/REG.6/V.5dated 25.11.1985 issued by the Under Secretary/P&R/for Secretary, PSEB, Patiala. 20. The effect of adoption of the policy decisions of the Central Government and the State Government was that a temporary employee, who had been retrenched from the service of the Central /State Government and had secured employment with the Punjab State Electricity Board, was entitled to count temporary service rendered by him under the Central/State Government to the extent such service was qualified for grant of pension under the rules of the Central/State Government. 52. With regard to the work-charged services, Punjab High Court had taken note of the judgment in Kesar Chand v. State of Punjab, (1988) 5 SLR 27(Punjab & Haryana) wherein Rule 3.17(ii) of the Punjab Civil Services Rules providing that period of service in work-charged establishments as not qualifying service was struck down. Thus the work-charged services rendered by respondent in the State Government was counted. 53. The above judgment in no manner helps the respondent in the present case. This Court in the above case interpreted statutory rules and circulars issued by the State Government as well as by the Board. The said judgment has no application in the facts of present case. 54. Another judgment relied by Shri Dhingra is in CWP No.2371 of 2010 [Harbans Lal v. State of Punjab & Ors.] decided on 31.08.2010. In the said case also Punjab and Haryana High Court considered the Punjab Civil Services Rules and pension scheme which came into effect w.e.f. 01.01.2004. The said judgment was on different statutory rules and in facts of that case, which does not help respondent in the present case. 55. In view of foregoing discussion, we hold :i) the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised on a regular/temporary post for the purposes of calculation of pension. ii) the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension. iii) Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993. iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfill the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993. | 1[ds]45. Thus except to the above extent, the judgment of Andhra Pradesh High Court in A. Ramanamma case lays down the correct law46. As observed above, the grant of temporary status of casual labour is not akin to appointment against a post and such contingency is not covered by Rule 20 and the same is expressly covered by Rule 31 which provides for half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to certain conditions enumerated there in. Thus Rule 31 is clearly applicable while computing the eligible services for calculating pensionary benefits on granting of temporary status47. In the impugned judgment of the Delhi High Court it is held that entire services of casual labour after obtaining temporary status who was subsequently regularised is entitled to reckon. Casual labour who has been granted temporary status can reckon half of services for pensionary benefits as per Rule 31. The reasons given by the Delhi High Court in the impugned judgment in para 6, 7 and 8 having been found not to be correct reasons, we are of the view that judgment of Delhi High Court is unsustainable and deserved to be set aside48. We, however, are of the view that the period of casual labour prior to grant of temporary status by virtue of Note-1 Rule 31 has to be counted to the extent of 50% for pensionary benefits50. Thus, in cases of those railway servants who are not eligible as per existing rules for grant of pension and there are certain mitigating circumstances which require consideration for relaxation the proposals can be forwarded by Pension Sanctioning Authority to Railway Board in an individual or group of casesWith regard to the work-charged services, Punjab High Court had taken note of the judgment in Kesar Chand v. State of Punjab, (1988) 5 SLR 27(Punjab) wherein Rule 3.17(ii) of the Punjab Civil Services Rules providing that period of service in work-charged establishments as not qualifying service was struck down. Thus the work-charged services rendered by respondent in the State Government was counted53. The above judgment in no manner helps the respondent in the present case. This Court in the above case interpreted statutory rules and circulars issued by the State Government as well as by the Board. The said judgment has no application in the facts of present case54. Another judgment relied by Shri Dhingra is in CWP No.2371 of 2010 [Harbans Lal v. State of Punjab23. In so far as reckoning of 50 per cent casual period, there is no challenge and it is clear that the said reckoning is in accordance with Rule 31 of Rules, 1993 and the benefit of said 50 per cent services of casual period had already been extended to the respondents.28. The perusal of para 20 of the Master Circular indicates that only half of the period of service of a casual labour after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as a regular Railway employee, counts for pensionary benefits.The cases before us are all the case where casual labour has been granted temporary status. Grant of temporary status is not equivalent to grant of an appointment against a post.40. Rule 20 provides that qualifying service shall commence from the date the employee takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Rule 20 is attracted when a person is appointed to the post in any of the above capacities. Rule 20 has no application when appointment is not against any post. When a casual labour is granted a temporary status, grant of a status confers various privileges as enumerated in para 2005 of IREM. One of the benefits enumerated in para 2005 sub clause(a) is also to make him eligible to count only half of the services rendered by him after attaining temporary status. Rule 20 is thus clearly not attracted in a case where only a temporary status is granted to casual worker and no appointment is made in any capacity against any post.41. The proviso to Rule 2042. The above Proviso has to be read along with the main Rule 20, when main Rule 20 contemplates commencement of qualifying service from the date he takes charge of the post, the appointment to a post is implicit and a condition precedent. The proviso put another different condition that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post. The proviso cannot be read independent to the main provision nor it can mean that by only grant of temporary status a casual employee is entitled to reckon his service of temporary status for purpose of pensionary benefit.43. The Delhi High Court in impugned judgment has not relied the subsequent judgment of Andhra Pradesh High Court in A.Ramanamma dated 01.05.2009 and did not follow the judgment of this court in Chanda Devi case (Supra) on the ground that Rule 20 specifically the proviso has not been considered. This Court in Chanda Devis case did not refer to Rule 20 since Rule 20 had no application in the facts of that case because the appointment of husband of respondent in Chanda Devis case was not against any post. Rule 20 being not applicable nonreference of Rule 20 by this Court in Chanda Devis case is inconsequential. In para 8 of the impugned judgment, the Delhi High Court for not relying on A.Ramanamma and Chanda Devi case gave following reasons:8. In the opinion of this Court, the subsequent ruling of the Andhra Pradesh High Court in Ramanamma(supra), with respect, does not declare the correct law. Though the judgment has considered certain previous rulings as well as the provisions of the IREM and Rule 31 of the Railway Services(Pension) Rules, the notice of the Court was not apparently drawn in that case and the Court did not take into account Rule 20, especially the proviso which specifically deals with the situation at hand. Likewise, Chanda Devi(supra) did not consider the effect of Rule 20, which, in the opinion of this Court, entitles those who work as casual labourers; are granted temporary status, and; eventually appointed substantively to the Railways, to reckon the entire period of temporary and substantive appointment for the purposes of pension.. The judgment of Andhra Pradesh High Court in A.Ramanamma case had considered in detail the judgment of this Court in Chanda Devis case as well as Para 20 of Master Circular and para 2005 of IREM and has also considered other case of this Court and has rightly come to the conclusion that casual labour after obtaining temporary status is entitled to reckon only half of the period. It may, however, be noticed that in A. Ramanamma case the Andhra High Court has also held that 50% of service as casual labour cannot be counted, which is not correct.ule 31 of Rules, 1993 provides for counting of service paid from contingencies. Note 1 of Rule 31 provides:-The provisions of this Rule shall also apply to casual labour paid from contingencies when Note 1 expressly makes applicable Rule 31 to the casual labour they are also entitled to reckon half of casual services paid from contingencies.. Thus except to the above extent, the judgment of Andhra Pradesh High Court in A. Ramanamma case lays down the correct46. As observed above, the grant of temporary status of casual labour is not akin to appointment against a post and such contingency is not covered by Rule 20 and the same is expressly covered by Rule 31 which provides for half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to certain conditions enumerated there in. Thus Rule 31 is clearly applicable while computing the eligible services for calculating pensionary benefits on granting of temporaryThere is specific rule in Rules, 1993 i.e. Rule 107, which empowers Pension Sanctioning Authority to approach the Ministry of Railways(Railway Board) for dispensing with or relaxing the requirement of any Rule operation of which causes hardship in any particular case51. Shri M.C.Dhingra, learned counsel for the respondent referred to case in Punjab State Electricity BoardAnother v. Narata Singh, 2010 (4) SCC 317 53. The above judgment in no manner helps the respondent in the present case. This Court in the above case interpreted statutory rules and circulars issued by the State Government as well as by the Board. The said judgment has no application in the facts of present | 1 | 8,408 | 1,564 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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i.e. Rule 107, which empowers Pension Sanctioning Authority to approach the Ministry of Railways(Railway Board) for dispensing with or relaxing the requirement of any Rule operation of which causes hardship in any particular case. Rule 107 is quoted as below:107. Power to relax - Where the pension sanctioning authority is satisfied that the operation of any of these rules causes undue hardship in any particular case, that authority, may for reasons to be recorded in writing, approach the Ministry of Railways (Railway Board) for dispensing with or relaxing the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. The Ministry of Railways(Railway Board) shall examine each such case and arrange to communicate the sanction of the President to the proposed dispensation or relaxation as it may consider necessary keeping in view the merits of each case and keeping in view of an other statutory provisions: Provided that no such order shall be made without concurrence of the Department of Pension and Pensioners Welfare, in the Ministry of Personnel, Public Grievances and Pensions, Government of India. 50. Thus, in cases of those railway servants who are not eligible as per existing rules for grant of pension and there are certain mitigating circumstances which require consideration for relaxation the proposals can be forwarded by Pension Sanctioning Authority to Railway Board in an individual or group of cases. We, thus, while allowing this appeal and setting aside the judgment of the High Court leave it open to the Pension Sanctioning Authority to recommend for grant of relaxation under Rule 107 in deserving cases. 51. Shri M.C.Dhingra, learned counsel for the respondent referred to case in Punjab State Electricity Board & Another v. Narata Singh & Another, 2010 (4) SCC 317 . In the above case, the issue for consideration was as to whether work-charged services rendered by respondent in the Department of Punjab State can be counted for the purpose of calculating qualifying service for pension payable to him as an employee of the Punjab State Electricity Board. The High Court has issued directions for counting the services rendered in the Irrigation Department of the State of Punjab for calculating pension of the respondent in Punjab State Electricity Board. Punjab State Electricity Board aggrieved by the judgment, filed SLP before this Court. This Court noticed that in the above judgment the Punjab State Electricity Board has adopted earlier decisions in which pensionary liability in respect of temporary services rendered in the Government of India and State Government were taken into consideration. Para 19 and para 20 of judgment as cited below:19. The above-mentioned policy decisions taken by the Central Government and the Government of Punjab were taken into consideration by the Board which issued a Memo dated 25-11-1985 with reference to the subject of allocation of pensionary liability in respect of temporary service rendered in the Government of India and the State Government and adopted the policy decision reflected in the Letter dated 20.05.1982 of the Government of Punjab, w.e.f. 31.03.1982 as per the instructions and conditions stipulated in the said letter. This is quite evident from Memo No. 257861/8761/REG.6/V.5dated 25.11.1985 issued by the Under Secretary/P&R/for Secretary, PSEB, Patiala. 20. The effect of adoption of the policy decisions of the Central Government and the State Government was that a temporary employee, who had been retrenched from the service of the Central /State Government and had secured employment with the Punjab State Electricity Board, was entitled to count temporary service rendered by him under the Central/State Government to the extent such service was qualified for grant of pension under the rules of the Central/State Government. 52. With regard to the work-charged services, Punjab High Court had taken note of the judgment in Kesar Chand v. State of Punjab, (1988) 5 SLR 27(Punjab & Haryana) wherein Rule 3.17(ii) of the Punjab Civil Services Rules providing that period of service in work-charged establishments as not qualifying service was struck down. Thus the work-charged services rendered by respondent in the State Government was counted. 53. The above judgment in no manner helps the respondent in the present case. This Court in the above case interpreted statutory rules and circulars issued by the State Government as well as by the Board. The said judgment has no application in the facts of present case. 54. Another judgment relied by Shri Dhingra is in CWP No.2371 of 2010 [Harbans Lal v. State of Punjab & Ors.] decided on 31.08.2010. In the said case also Punjab and Haryana High Court considered the Punjab Civil Services Rules and pension scheme which came into effect w.e.f. 01.01.2004. The said judgment was on different statutory rules and in facts of that case, which does not help respondent in the present case. 55. In view of foregoing discussion, we hold :i) the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised on a regular/temporary post for the purposes of calculation of pension. ii) the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension. iii) Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993. iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfill the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993.
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accordance with Rule 31 of Rules, 1993 and the benefit of said 50 per cent services of casual period had already been extended to the respondents.28. The perusal of para 20 of the Master Circular indicates that only half of the period of service of a casual labour after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as a regular Railway employee, counts for pensionary benefits.The cases before us are all the case where casual labour has been granted temporary status. Grant of temporary status is not equivalent to grant of an appointment against a post.40. Rule 20 provides that qualifying service shall commence from the date the employee takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Rule 20 is attracted when a person is appointed to the post in any of the above capacities. Rule 20 has no application when appointment is not against any post. When a casual labour is granted a temporary status, grant of a status confers various privileges as enumerated in para 2005 of IREM. One of the benefits enumerated in para 2005 sub clause(a) is also to make him eligible to count only half of the services rendered by him after attaining temporary status. Rule 20 is thus clearly not attracted in a case where only a temporary status is granted to casual worker and no appointment is made in any capacity against any post.41. The proviso to Rule 2042. The above Proviso has to be read along with the main Rule 20, when main Rule 20 contemplates commencement of qualifying service from the date he takes charge of the post, the appointment to a post is implicit and a condition precedent. The proviso put another different condition that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post. The proviso cannot be read independent to the main provision nor it can mean that by only grant of temporary status a casual employee is entitled to reckon his service of temporary status for purpose of pensionary benefit.43. The Delhi High Court in impugned judgment has not relied the subsequent judgment of Andhra Pradesh High Court in A.Ramanamma dated 01.05.2009 and did not follow the judgment of this court in Chanda Devi case (Supra) on the ground that Rule 20 specifically the proviso has not been considered. This Court in Chanda Devis case did not refer to Rule 20 since Rule 20 had no application in the facts of that case because the appointment of husband of respondent in Chanda Devis case was not against any post. Rule 20 being not applicable nonreference of Rule 20 by this Court in Chanda Devis case is inconsequential. In para 8 of the impugned judgment, the Delhi High Court for not relying on A.Ramanamma and Chanda Devi case gave following reasons:8. In the opinion of this Court, the subsequent ruling of the Andhra Pradesh High Court in Ramanamma(supra), with respect, does not declare the correct law. Though the judgment has considered certain previous rulings as well as the provisions of the IREM and Rule 31 of the Railway Services(Pension) Rules, the notice of the Court was not apparently drawn in that case and the Court did not take into account Rule 20, especially the proviso which specifically deals with the situation at hand. Likewise, Chanda Devi(supra) did not consider the effect of Rule 20, which, in the opinion of this Court, entitles those who work as casual labourers; are granted temporary status, and; eventually appointed substantively to the Railways, to reckon the entire period of temporary and substantive appointment for the purposes of pension.. The judgment of Andhra Pradesh High Court in A.Ramanamma case had considered in detail the judgment of this Court in Chanda Devis case as well as Para 20 of Master Circular and para 2005 of IREM and has also considered other case of this Court and has rightly come to the conclusion that casual labour after obtaining temporary status is entitled to reckon only half of the period. It may, however, be noticed that in A. Ramanamma case the Andhra High Court has also held that 50% of service as casual labour cannot be counted, which is not correct.ule 31 of Rules, 1993 provides for counting of service paid from contingencies. Note 1 of Rule 31 provides:-The provisions of this Rule shall also apply to casual labour paid from contingencies when Note 1 expressly makes applicable Rule 31 to the casual labour they are also entitled to reckon half of casual services paid from contingencies.. Thus except to the above extent, the judgment of Andhra Pradesh High Court in A. Ramanamma case lays down the correct46. As observed above, the grant of temporary status of casual labour is not akin to appointment against a post and such contingency is not covered by Rule 20 and the same is expressly covered by Rule 31 which provides for half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to certain conditions enumerated there in. Thus Rule 31 is clearly applicable while computing the eligible services for calculating pensionary benefits on granting of temporaryThere is specific rule in Rules, 1993 i.e. Rule 107, which empowers Pension Sanctioning Authority to approach the Ministry of Railways(Railway Board) for dispensing with or relaxing the requirement of any Rule operation of which causes hardship in any particular case51. Shri M.C.Dhingra, learned counsel for the respondent referred to case in Punjab State Electricity BoardAnother v. Narata Singh, 2010 (4) SCC 317 53. The above judgment in no manner helps the respondent in the present case. This Court in the above case interpreted statutory rules and circulars issued by the State Government as well as by the Board. The said judgment has no application in the facts of present
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M/S. SIMPLEX INFRASTRUCTURE LTD Vs. UNION OF INDIA | the 1996 Act on 30 January 2015 before the District Judge, Port Blair for setting aside the arbitral award dated 27 October 2014. On 12 February 2016, the District Judge dismissed the respondents application for want of jurisdiction. It was only on 28 March 2016, that the respondent filed an application under Section 34 of the 1996 Act before the High Court of Calcutta challenging the arbitral award, along with an application for condonation of delay of 514 days. 12. The contention of Mr Aryama Sundaram, learned senior counsel for the appellant is that even if the benefit of Section 14 of the Limitation Act is extended to the respondent in filing the application under Section 34 of the 1996 Act, there would still be a delay of 131 days which could not be condoned in view of the specific statutory limitation prescribed under Section 34(3) of the 1996 Act. The learned senior counsel has tendered the following tabulated chart: chart The appellant has, in this connection, relied on Union of India v Popular Construction Company (supra) and Consolidated Engineering Enterprises v Principal Secretary, Irrigation Department (supra) to support its case. On the other hand, it is the respondents contention that there were no willful latches on its part and the delay was caused due to inevitable administrative difficulties of obtaining directions from higher officials. 13. A plain reading of sub-section (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words but not thereafter in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed in sub-section (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandate. 14. The respondent received the arbitral award on 31 October 2014. Exactly ninety days after the receipt of the award, the respondent filed an application under Section 34 of the 1996 Act before the District Judge, Port Blair on 30 January 2015. On 12 February 2016, the District Judge dismissed the application for want of jurisdiction and on 28 March 2016, the respondent filed an application before the High Court under Section 34 of the 1996 Act for setting aside the arbitral award. After the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court. Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety days. 15. The respondent has relied on the decision of this Court in Union of India v Tecco Trichy Engineers & Contractors (2005) 4 SCC 239 , where this Court had to decide the effective date from which the limitation within the meaning of sub- section (3) of Section 34 of the Act shall be calculated. The Chief Project Manager on behalf of the Southern Railway had entered into a contract with a contractor for construction of a railway bridge. Disputes between the parties were referred to arbitration and an award was delivered in the office of the General Manager, Southern Railway. The Chief Engineer preferred an application against the award under Section 34 of the 1996 Act before the High Court. The learned Single Judge and the Division Bench of the High Court rejected the application holding it as barred by limitation. This Court reversed the order of the High Court and condoned the application for delay. This Court observed that in huge organisations like the Railways having different divisional heads and various departments within the division, the copy of the award had to be received by the person who had knowledge of the proceedings and who would be the best person to understand and appreciate the award and grounds for challenge. This Court found that all arbitral proceedings for the Railways were being represented by the Chief Engineer and the General Manager had simply referred the matter for arbitration as required under the contract. While condoning the delay of three months and 27 days, this Court found that the service of the arbitral award on the General Manager could not be taken to be sufficient notice to constitute the starting point of limitation for the purpose of Section 34(3) of the 1996 Act. The decision in this case has no applicability to the facts of the present case as there is no dispute with respect to the party who received the arbitral award. It is an admitted position that on 27 October 2014, the arbitrator made an award in favour of the appellant and on 31 October 2014, the Union of India received a copy of the award. One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a time- consuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act. | 1[ds]The position of law is well settled with respect to the applicability of Section14 of the Limitation Act to an application filed under Section 34 of the 1996 Act. By applying the facts of the present case to the well settled position of law, we need to assess whether the learned Single Judge of the High Court was justified in condoning the delay for filing an application under Section 34 of the 1996 ActThe respondent submitted an application under Section 34 of the 1996 Act on 30 January 2015 before the District Judge, Port Blair for setting aside the arbitral award dated 27 October 2014. On 12 February 2016, the District Judge dismissed the respondents application for want of jurisdiction. It was only on 28 March 2016, that the respondent filed an application under Section 34 of the 1996 Act before the High Court of Calcutta challenging the arbitral award, along with an application for condonation of delay of 514 daysA plain reading ofn (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned inn (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words but not thereafter in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed inn (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandateThe respondent received the arbitral award on 31 October 2014. Exactly ninety days after the receipt of the award, the respondent filed an application under Section 34 of the 1996 Act before the District Judge, Port Blair on 30 January 2015. On 12 February 2016, the District Judge dismissed the application for want of jurisdiction and on 28 March 2016, the respondent filed an application before the High Court under Section 34 of the 1996 Act for setting aside the arbitral award. After the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court. Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety daysThe decision in this case has no applicability to the facts of the present case as there is no dispute with respect to the party who received the arbitral award. It is an admitted position that on 27 October 2014, the arbitrator made an award in favour of the appellant and on 31 October 2014, the Union of India received a copy of the award. One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a timeconsuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act. | 1 | 3,793 | 683 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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the 1996 Act on 30 January 2015 before the District Judge, Port Blair for setting aside the arbitral award dated 27 October 2014. On 12 February 2016, the District Judge dismissed the respondents application for want of jurisdiction. It was only on 28 March 2016, that the respondent filed an application under Section 34 of the 1996 Act before the High Court of Calcutta challenging the arbitral award, along with an application for condonation of delay of 514 days. 12. The contention of Mr Aryama Sundaram, learned senior counsel for the appellant is that even if the benefit of Section 14 of the Limitation Act is extended to the respondent in filing the application under Section 34 of the 1996 Act, there would still be a delay of 131 days which could not be condoned in view of the specific statutory limitation prescribed under Section 34(3) of the 1996 Act. The learned senior counsel has tendered the following tabulated chart: chart The appellant has, in this connection, relied on Union of India v Popular Construction Company (supra) and Consolidated Engineering Enterprises v Principal Secretary, Irrigation Department (supra) to support its case. On the other hand, it is the respondents contention that there were no willful latches on its part and the delay was caused due to inevitable administrative difficulties of obtaining directions from higher officials. 13. A plain reading of sub-section (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words but not thereafter in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed in sub-section (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandate. 14. The respondent received the arbitral award on 31 October 2014. Exactly ninety days after the receipt of the award, the respondent filed an application under Section 34 of the 1996 Act before the District Judge, Port Blair on 30 January 2015. On 12 February 2016, the District Judge dismissed the application for want of jurisdiction and on 28 March 2016, the respondent filed an application before the High Court under Section 34 of the 1996 Act for setting aside the arbitral award. After the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court. Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety days. 15. The respondent has relied on the decision of this Court in Union of India v Tecco Trichy Engineers & Contractors (2005) 4 SCC 239 , where this Court had to decide the effective date from which the limitation within the meaning of sub- section (3) of Section 34 of the Act shall be calculated. The Chief Project Manager on behalf of the Southern Railway had entered into a contract with a contractor for construction of a railway bridge. Disputes between the parties were referred to arbitration and an award was delivered in the office of the General Manager, Southern Railway. The Chief Engineer preferred an application against the award under Section 34 of the 1996 Act before the High Court. The learned Single Judge and the Division Bench of the High Court rejected the application holding it as barred by limitation. This Court reversed the order of the High Court and condoned the application for delay. This Court observed that in huge organisations like the Railways having different divisional heads and various departments within the division, the copy of the award had to be received by the person who had knowledge of the proceedings and who would be the best person to understand and appreciate the award and grounds for challenge. This Court found that all arbitral proceedings for the Railways were being represented by the Chief Engineer and the General Manager had simply referred the matter for arbitration as required under the contract. While condoning the delay of three months and 27 days, this Court found that the service of the arbitral award on the General Manager could not be taken to be sufficient notice to constitute the starting point of limitation for the purpose of Section 34(3) of the 1996 Act. The decision in this case has no applicability to the facts of the present case as there is no dispute with respect to the party who received the arbitral award. It is an admitted position that on 27 October 2014, the arbitrator made an award in favour of the appellant and on 31 October 2014, the Union of India received a copy of the award. One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a time- consuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act.
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The position of law is well settled with respect to the applicability of Section14 of the Limitation Act to an application filed under Section 34 of the 1996 Act. By applying the facts of the present case to the well settled position of law, we need to assess whether the learned Single Judge of the High Court was justified in condoning the delay for filing an application under Section 34 of the 1996 ActThe respondent submitted an application under Section 34 of the 1996 Act on 30 January 2015 before the District Judge, Port Blair for setting aside the arbitral award dated 27 October 2014. On 12 February 2016, the District Judge dismissed the respondents application for want of jurisdiction. It was only on 28 March 2016, that the respondent filed an application under Section 34 of the 1996 Act before the High Court of Calcutta challenging the arbitral award, along with an application for condonation of delay of 514 daysA plain reading ofn (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned inn (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words but not thereafter in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed inn (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandateThe respondent received the arbitral award on 31 October 2014. Exactly ninety days after the receipt of the award, the respondent filed an application under Section 34 of the 1996 Act before the District Judge, Port Blair on 30 January 2015. On 12 February 2016, the District Judge dismissed the application for want of jurisdiction and on 28 March 2016, the respondent filed an application before the High Court under Section 34 of the 1996 Act for setting aside the arbitral award. After the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court. Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety daysThe decision in this case has no applicability to the facts of the present case as there is no dispute with respect to the party who received the arbitral award. It is an admitted position that on 27 October 2014, the arbitrator made an award in favour of the appellant and on 31 October 2014, the Union of India received a copy of the award. One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a timeconsuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act.
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Gillanders Arbuthnot And Co., Ltd Vs. The Commissioner Of Income-Tax, Calcutta | taken over by the Imperial Chemical Industries -(India) Ltd., such commission to be computed at the rates of commission formerly paid to the appellant, and that in "the third post-transfer year" the principal company was to pay the appellant in addition a sum equivalent to full commission on the sales for that year effected by the Imperial "Chemical Industries (India) Ltd., in the appellants territory calculated at the same rates.13. The appellant was conducting business as selling or distributing agent of numerous principals. The agency which was terminated was one of many such agencies in which the appellant functioned as distributing agent of a foreign principal. There is not even a suggestion, that by the termination of the agency held by the appellant in explosives from the principal company, the trading structure of the assessees business was impaired. It is manifest that the agencies of the companies conducted by the appellant must have been obtained at different times. There is no evidence that these agencies were of any fixed duration. It would be reasonable to infer that some of the agencies may be cancelled and fresh agencies obtained. The list furnished by the appellant before the Tribunal analysing the different classes of business carded on by it disclosed that the business was done in many lines. The appellant acted as managing agent of some concerns, as distributing agent of others, and as secretary of still other class of concerns. Again it dealt as an exporter and importer, shipping agent, and as a buyer and dealer in diverse commodities. A large amount of business was done by the appellant as an agent of foreign companies. The appellant had obtained agencies for paints, varnishes, petroleum, kerosene oil, medicines and toilet preparations, cement, timber, stationery, metals, tea engineering goods, air-conditioning equipment and a large number of other commodities. It may reasonably be held, having regard to the vast array of business done by the appellant as agents, that the acquisition of agencies was in the normal course of business and determination of individual agencies, a normal incident, not affecting or impairing the trading structure of the appellant. The appellant was compensated by payment to it the loss of profit it suffered by the cancellation of its agency, leaving it free to conduct its remaining business.14. It was said that the appellant had employed expert officers who were accustomed to handle explosives which are a specialised commodity and the cancellation of that agency seriously affected the organization of its trading operations. But the appellant was undoubtedly dealing in several kinds of inflammable substances, such as, petroleum, kerosene oil, timber and similar other commodities. It is true that explosives would require great care in handling. It appears, however, that eighty per cent of the staff attached to the Magazine Section was maintained not at the expense of the appellant, but at the expense of the principal company. Out of the officers who were attached to the explosives business, services of five officers were taken over by the principal company and six others were retained by the appellant and absorbed in other branches. It cannot, therefore, be said that termination of the agency results in impairment of the trading organization of the appellant. One of the agencies was undoubtedly lost to the appellant, and even temporary dislocation in the organisation of the business thereby may be assumed. There is no evidence, however, that the appellant could not in the ordinary course of business repair the dislocation. There is no evidence that it could not obtain an agency from another manufacturer of explosives. Even assuming that such an agency in explosives may not be replaced, that circumstance by itself may not justify, the inference that the agency was independent of the other lines of business conducted by the appellant, or that by the cancellation of the agency an enduring asset was lost to the appellant. The circumstance that the agency was determinable at the will of the principal company which maintained a large staff at their expense justifies the inference that upon cancellation of that agency the appellants business organization was not substantially impaired. The cancellation it may be held, was an incident of the trading operations of the appellant in the normal course of business. The payment received by the appellant could not, therefore, be regarded truly as compensation for not carrying on the business : it was a sum which was worked out in terms of profits which the appellant would have earned during the period of notice and paid in the ordinary course of business to adjust the relations between the appellant and the principal company.15. There is, in our judgment, no immutable principle that compensation received on cancellation of an agency must always be regarded as capital. In each case the question has to be determinate in the light of the attendant circumstances. In the judgment in Kettlewell Dullen and Cos case, C. A. No. 226 of 1963 D/- 1-5-1984 : (AIR 1965 SC 65 ) we have explained that the judgment of the Judicial Committee in the Commissioner of Income-tax, Bengal v. shaw Wallace and Co. 59 Ind App 206 : (AIR 1932 PC 138 ) was not intended to, and did not lay down that in every case, cancellation of an agency resulted in loss of a source of revenue or that amounts paid to compensate for loss of agency must be regarded as capital loss.16. On a careful consideration of all the circumstances we agree with the High Court that cancellation of the contract of agency did not affect the profit-making structure of the appellant, nor did it involve a loss of an enduring trading asset : it merely deprived the appellant of a trading avenue, leaving him free to devote his energies after the cancellation to carry on the rest of the business, and to replace the contract lost by a similar contract. The compensation paid, therefore, did not represent the price paid for loss of a capital asset.17 | 0[ds]15. There is, in our judgment, no immutable principle that compensation received on cancellation of an agency must always be regarded as capital. In each case the question has to be determinate in the light of the attendant circumstances. In the judgment in Kettlewell Dullen and Cos case, C. A. No. 226 of 1963 D/- 1-5-1984 : (AIR 1965 SC 65 ) we have explained that the judgment of the Judicial Committee in the Commissioner of Income-tax, Bengal v. shaw Wallace and Co. 59 Ind App 206 : (AIR 1932 PC 138 ) was not intended to, and did not lay down that in every case, cancellation of an agency resulted in loss of a source of revenue or that amounts paid to compensate for loss of agency must be regarded as capital loss.16. On a careful consideration of all the circumstances we agree with the High Court that cancellation of the contract of agency did not affect the profit-making structure of the appellant, nor did it involve a loss of an enduring trading asset : it merely deprived the appellant of a trading avenue, leaving him free to devote his energies after the cancellation to carry on the rest of the business, and to replace the contract lost by a similar contract. The compensation paid, therefore, did not represent the price paid for loss of a capitalcannot seriously be disputed that compensation paid for agreeing to refrain from carrying on competitive business in the commodities in respect of which the agency was terminated, or for loss of goodwill would, prima facie, be of the nature of a capital receipt. But there is no evidence that compensation was paid to the appellant as consideration for giving the undertaking not to carry on a competitive business, or as compensation for loss ofthat an agreement to refrain from carrying on a competitive business may be implied from subsequent conduct, in the absence of any material at any stage of the proceedings before the Revenue authorities, it would be reasonable to hold that the appellant did not place any reliance upon the case that part of the compensation was attributable to an undertaking not to engage in competitivetherefore held that the inference sought to be drawn by the appellant that compensation was referable to the loss of goodwill was based on no evidence and the High Court agreed with that conclusion. We are unable to hold that the High Court was in so holding, in error. If it was the case of the appellant that a part of the compensation was in fact paid for loss of goodwill of the business, the appellant could have led evidence to establish that it was the intention of the parties that the loss of goodwill was to be compensated by payment of an amount which was included in the compensation ultimately paid by the principal company to the appellant. The business of agency had undoubtedly continued for more than sixty years, but there is no evidence about the terms of the agency agreement. There was no written agreement, and it is common ground that the agency was terminable at will. The principal company had, as early as, 1945, informed the appellant that the distribution arrangement "would be terminated after two or three years". The appellant had sufficient notice of the proposed termination. Thereafter the agency was cancelled with effect from April 1, 1948 and in the correspondence which is tendered in evidence, there is not even an indirect reference to any negotiation for payment of compensation for loss of goodwill, or any agreement in thathave in a recent case in Kettlewell Bullen and Co. v. Commissioner ofCalcutta, C.A. No. 226 of 1963 D/: (AIR 1965 SC 65 ) made a survey of the important cases which have arisen before the Courts in the United Kingdom and an India about the principles which govern the determination of the nature of compensation received on the termination of an agency. We observed in that casean analysis of these cases which fall on two sides of the dividing line, a satisfactory measure of consistency in principle is disclosed where on a consideration of the circumstances, payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business, nor deprivehim of what in substance is his source of income, termination of the contract being a normal incident of the business, and such cancellation leaves him free to carry on his trade (freed from the contract terminated) the receipt is revenue : where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt.Examining the circumstances of the present case in the light of that principle, we agree with the High Court that that was received by the appellant was income and not capital. Compensation received by the appellant for cancellation of the agency which was terminable at will, the appellant was to be paid an amount which was to be computed on the basis of the profits of the business. Under the letter dated March 11, 1947, the appellant was to be paid "for the first threehs of the commission accrued on actual sales in the territory of the appellants agency taken over by the Imperial Chemical Industries(India) Ltd., such commission to be computed at the rates of commission formerly paid to the appellant, and that in "the thirdyear" the principal company was to pay the appellant in addition a sum equivalent to full commission on the sales for that year effected by the Imperial "Chemical Industries (India) Ltd., in the appellants territory calculated at the samemay reasonably be held, having regard to the vast array of business done by the appellant as agents, that the acquisition of agencies was in the normal course of business and determination of individual agencies, a normal incident, not affecting or impairing the trading structure of the appellant. The appellant was compensated by payment to it the loss of profit it suffered by the cancellation of its agency, leaving it free to conduct its remainingpayment received by the appellant could not, therefore, be regarded truly as compensation for not carrying on the business : it was a sum which was worked out in terms of profits which the appellant would have earned during the period of notice and paid in the ordinary course of business to adjust the relations between the appellant and the principal company. | 0 | 3,862 | 1,200 | ### Instruction:
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taken over by the Imperial Chemical Industries -(India) Ltd., such commission to be computed at the rates of commission formerly paid to the appellant, and that in "the third post-transfer year" the principal company was to pay the appellant in addition a sum equivalent to full commission on the sales for that year effected by the Imperial "Chemical Industries (India) Ltd., in the appellants territory calculated at the same rates.13. The appellant was conducting business as selling or distributing agent of numerous principals. The agency which was terminated was one of many such agencies in which the appellant functioned as distributing agent of a foreign principal. There is not even a suggestion, that by the termination of the agency held by the appellant in explosives from the principal company, the trading structure of the assessees business was impaired. It is manifest that the agencies of the companies conducted by the appellant must have been obtained at different times. There is no evidence that these agencies were of any fixed duration. It would be reasonable to infer that some of the agencies may be cancelled and fresh agencies obtained. The list furnished by the appellant before the Tribunal analysing the different classes of business carded on by it disclosed that the business was done in many lines. The appellant acted as managing agent of some concerns, as distributing agent of others, and as secretary of still other class of concerns. Again it dealt as an exporter and importer, shipping agent, and as a buyer and dealer in diverse commodities. A large amount of business was done by the appellant as an agent of foreign companies. The appellant had obtained agencies for paints, varnishes, petroleum, kerosene oil, medicines and toilet preparations, cement, timber, stationery, metals, tea engineering goods, air-conditioning equipment and a large number of other commodities. It may reasonably be held, having regard to the vast array of business done by the appellant as agents, that the acquisition of agencies was in the normal course of business and determination of individual agencies, a normal incident, not affecting or impairing the trading structure of the appellant. The appellant was compensated by payment to it the loss of profit it suffered by the cancellation of its agency, leaving it free to conduct its remaining business.14. It was said that the appellant had employed expert officers who were accustomed to handle explosives which are a specialised commodity and the cancellation of that agency seriously affected the organization of its trading operations. But the appellant was undoubtedly dealing in several kinds of inflammable substances, such as, petroleum, kerosene oil, timber and similar other commodities. It is true that explosives would require great care in handling. It appears, however, that eighty per cent of the staff attached to the Magazine Section was maintained not at the expense of the appellant, but at the expense of the principal company. Out of the officers who were attached to the explosives business, services of five officers were taken over by the principal company and six others were retained by the appellant and absorbed in other branches. It cannot, therefore, be said that termination of the agency results in impairment of the trading organization of the appellant. One of the agencies was undoubtedly lost to the appellant, and even temporary dislocation in the organisation of the business thereby may be assumed. There is no evidence, however, that the appellant could not in the ordinary course of business repair the dislocation. There is no evidence that it could not obtain an agency from another manufacturer of explosives. Even assuming that such an agency in explosives may not be replaced, that circumstance by itself may not justify, the inference that the agency was independent of the other lines of business conducted by the appellant, or that by the cancellation of the agency an enduring asset was lost to the appellant. The circumstance that the agency was determinable at the will of the principal company which maintained a large staff at their expense justifies the inference that upon cancellation of that agency the appellants business organization was not substantially impaired. The cancellation it may be held, was an incident of the trading operations of the appellant in the normal course of business. The payment received by the appellant could not, therefore, be regarded truly as compensation for not carrying on the business : it was a sum which was worked out in terms of profits which the appellant would have earned during the period of notice and paid in the ordinary course of business to adjust the relations between the appellant and the principal company.15. There is, in our judgment, no immutable principle that compensation received on cancellation of an agency must always be regarded as capital. In each case the question has to be determinate in the light of the attendant circumstances. In the judgment in Kettlewell Dullen and Cos case, C. A. No. 226 of 1963 D/- 1-5-1984 : (AIR 1965 SC 65 ) we have explained that the judgment of the Judicial Committee in the Commissioner of Income-tax, Bengal v. shaw Wallace and Co. 59 Ind App 206 : (AIR 1932 PC 138 ) was not intended to, and did not lay down that in every case, cancellation of an agency resulted in loss of a source of revenue or that amounts paid to compensate for loss of agency must be regarded as capital loss.16. On a careful consideration of all the circumstances we agree with the High Court that cancellation of the contract of agency did not affect the profit-making structure of the appellant, nor did it involve a loss of an enduring trading asset : it merely deprived the appellant of a trading avenue, leaving him free to devote his energies after the cancellation to carry on the rest of the business, and to replace the contract lost by a similar contract. The compensation paid, therefore, did not represent the price paid for loss of a capital asset.17
### Response:
0
### Explanation:
agency resulted in loss of a source of revenue or that amounts paid to compensate for loss of agency must be regarded as capital loss.16. On a careful consideration of all the circumstances we agree with the High Court that cancellation of the contract of agency did not affect the profit-making structure of the appellant, nor did it involve a loss of an enduring trading asset : it merely deprived the appellant of a trading avenue, leaving him free to devote his energies after the cancellation to carry on the rest of the business, and to replace the contract lost by a similar contract. The compensation paid, therefore, did not represent the price paid for loss of a capitalcannot seriously be disputed that compensation paid for agreeing to refrain from carrying on competitive business in the commodities in respect of which the agency was terminated, or for loss of goodwill would, prima facie, be of the nature of a capital receipt. But there is no evidence that compensation was paid to the appellant as consideration for giving the undertaking not to carry on a competitive business, or as compensation for loss ofthat an agreement to refrain from carrying on a competitive business may be implied from subsequent conduct, in the absence of any material at any stage of the proceedings before the Revenue authorities, it would be reasonable to hold that the appellant did not place any reliance upon the case that part of the compensation was attributable to an undertaking not to engage in competitivetherefore held that the inference sought to be drawn by the appellant that compensation was referable to the loss of goodwill was based on no evidence and the High Court agreed with that conclusion. We are unable to hold that the High Court was in so holding, in error. If it was the case of the appellant that a part of the compensation was in fact paid for loss of goodwill of the business, the appellant could have led evidence to establish that it was the intention of the parties that the loss of goodwill was to be compensated by payment of an amount which was included in the compensation ultimately paid by the principal company to the appellant. The business of agency had undoubtedly continued for more than sixty years, but there is no evidence about the terms of the agency agreement. There was no written agreement, and it is common ground that the agency was terminable at will. The principal company had, as early as, 1945, informed the appellant that the distribution arrangement "would be terminated after two or three years". The appellant had sufficient notice of the proposed termination. Thereafter the agency was cancelled with effect from April 1, 1948 and in the correspondence which is tendered in evidence, there is not even an indirect reference to any negotiation for payment of compensation for loss of goodwill, or any agreement in thathave in a recent case in Kettlewell Bullen and Co. v. Commissioner ofCalcutta, C.A. No. 226 of 1963 D/: (AIR 1965 SC 65 ) made a survey of the important cases which have arisen before the Courts in the United Kingdom and an India about the principles which govern the determination of the nature of compensation received on the termination of an agency. We observed in that casean analysis of these cases which fall on two sides of the dividing line, a satisfactory measure of consistency in principle is disclosed where on a consideration of the circumstances, payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business, nor deprivehim of what in substance is his source of income, termination of the contract being a normal incident of the business, and such cancellation leaves him free to carry on his trade (freed from the contract terminated) the receipt is revenue : where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt.Examining the circumstances of the present case in the light of that principle, we agree with the High Court that that was received by the appellant was income and not capital. Compensation received by the appellant for cancellation of the agency which was terminable at will, the appellant was to be paid an amount which was to be computed on the basis of the profits of the business. Under the letter dated March 11, 1947, the appellant was to be paid "for the first threehs of the commission accrued on actual sales in the territory of the appellants agency taken over by the Imperial Chemical Industries(India) Ltd., such commission to be computed at the rates of commission formerly paid to the appellant, and that in "the thirdyear" the principal company was to pay the appellant in addition a sum equivalent to full commission on the sales for that year effected by the Imperial "Chemical Industries (India) Ltd., in the appellants territory calculated at the samemay reasonably be held, having regard to the vast array of business done by the appellant as agents, that the acquisition of agencies was in the normal course of business and determination of individual agencies, a normal incident, not affecting or impairing the trading structure of the appellant. The appellant was compensated by payment to it the loss of profit it suffered by the cancellation of its agency, leaving it free to conduct its remainingpayment received by the appellant could not, therefore, be regarded truly as compensation for not carrying on the business : it was a sum which was worked out in terms of profits which the appellant would have earned during the period of notice and paid in the ordinary course of business to adjust the relations between the appellant and the principal company.
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Commissioner Of Income-Tax, Andhra Pradesh,Hyderabad Vs. Jayalakshmi Rice And Oil Mills Contractor Co | firm is not registered under the Indian Partnership Act, 1932 (1X of 1932) or where the deed of Partnership is not registered under the Indian Registration Act, 1908 (XVI of 1908), and the application for registration is being made for the first time under the Act, (i) Within a period of six months of the constitution of the firm or before the end of the previous year of the firm whichever is earlier, if the firm was constituted in that previous year, (ii) before the end of the previous year in any other case; (b) Where the firm is registered under the Indian Partnership Act, 1932. (IX of 1932) or where the deed of partnership is registered under the Indian Registration Act, (XVI of 1908) before the end of the previous year of the firm.........., Now it is common ground that the application for registration was not made within the period prescribed by Rule 2 (a). What has been urged throughout on behalf of the assessees is that the application to the Income tax Officer was governed by Rule 2 (b) and was in time as the firm should be deemed to have been registered not on the date on which it was actually registered by the Registrar of Firms but with effect from the date on which the application for registration was presented to the Registrar. In other words the firm should be considered to have been registered on October 20, 1955 on which date the statement under Section 58 of the Partnership Act was filed by the assessee before the Registrar of Firms. 4. The real question which has to be determined is whether the registration of a firm under the Partnership Act takes place with effect from the date on which the application for registration is made in accordance with Section 58 of that Act. Section 58 (1) provides that the registration of a firm may be effected at any time by sending by post or delivering to the Registrar of the area in which any place of business of the firm is situated or proposed to be situated a statement in the prescribed form and accompanied by the prescribed fee stating.........Under Section 59 when the Registrar is satisfied that the provisions of Section 58 have been duly complied with he shall record an entry of the statement in a register called the register of firms and shall file the statement. In Ram Prasad v. Kamta Prasad. AIR 1935 All 898 it was laid down that the registration of a firm under the Partnership Act takes place only when the necessary entry is made in the register of firms. Even under Section 69 of the Partnership Act which deals with the effect of non-registration it has been consistently held that the registration of a firm subsequent to the filing of the suit did not cure the defect; See Danmal Parshotamdas v. Baburam Chhotelal, ILR (1836) 58 All 495 (AIR 1936 All 3 ). Thus under the Partnership law it can be taken to have been settled by decisions of High Courts from a long time that the registration of a firm takes place only when the necessary entry is made in the register of firms under Section 59 of the Partnership Act by the Registrar. It is true that sub-section (l) of Section 58 employs language which without anything more may lend support to the view that the registration of a firm may be effected merely by sending an application which would mean that as soon as an application is sent and if entry is made under Section 59 pursuant to it the registration would be effective from the date when the application was presented. But Section 58 (1) is not to be read in isolation and has to be considered along with the scheme of the other provisions of the Act, namely, Section 59 and Section 69. The latter section may not have a direct bearing on the point under our consideration but it throws light on what was contemplated by the legislature with regard to the point of time when the firm could be regarded as registered. The Kerala High Court has in Kerala Road Lines Corporation v. Commr. of Income-tax Kerala. (1964) 51 ITR 711 = (AIR 1964 Kerala 251) clearly expressed the view that reading Sections 58 and 59 of the Indian Partnership Act together a firm cannot be said to be registered when the statement prescribed by Section 58 and the required fee are sent to the Registrar and that the registration of the firm is effected only when the entry of the statement is recorded in the register of firms and the statement is filed by the Registrar as provided in Sec. 59. In that case also an identically similar question arose in respect of registration of a firm under Section 26-A of the Income tax Act. 5. The High Court in the judgment under appeal referred to the statement extracted from the report of the Special Committee which had been appointed by the Government of India to examine the provisions of the Bill before it came to be passed by the Central Legislature as the Partnership Act and reference was made in particular to the statement relating to Sec. 58 corresponding to Section 59 of the Partnership Act to the effect that the Registrar was a mere recording officer and that he had no discretion but to record the entry in the register of firms. We are unable to see how that statement can be taken into consideration for the purpose of interpreting the relevant provisions of the Partnership Act. We also cannot concur with the other reasoning of the High Court for coming to the conclusion that the partnership should be deemed to have been registered on the date when the application was presented and that the requirement of Rule 2 (b) would be satisfied if it became registered under the Partnership Act even after the application was filed. | 1[ds]Thus under the Partnership law it can be taken to have been settled by decisions of High Courts from a long time that the registration of a firm takes place only when the necessary entry is made in the register of firms under Section 59 of the Partnership Act by the Registrar. It is true that sub-section (l) of Section 58 employs language which without anything more may lend support to the view that the registration of a firm may be effected merely by sending an application which would mean that as soon as an application is sent and if entry is made under Section 59 pursuant to it the registration would be effective from the date when the application was presented. But Section 58 (1) is not to be read in isolation and has to be considered along with the scheme of the other provisions of the Act, namely, Section 59 and Section 69. The latter section may not have a direct bearing on the point under our consideration but it throws light on what was contemplated by the legislature with regard to the point of time when the firm could be regarded as registered. The Kerala High Court has in Kerala Road Lines Corporation v. Commr. of Income-tax Kerala. (1964) 51 ITR 711 = (AIR 1964 Kerala 251) clearly expressed the view that reading Sections 58 and 59 of the Indian Partnership Act together a firm cannot be said to be registered when the statement prescribed by Section 58 and the required fee are sent to the Registrar and that the registration of the firm is effected only when the entry of the statement is recorded in the register of firms and the statement is filed by the Registrar as provided in Sec. 59. In that case also an identically similar question arose in respect of registration of a firm under Section 26-A of the Income tax Act5. The High Court in the judgment under appeal referred to the statement extracted from the report of the Special Committee which had been appointed by the Government of India to examine the provisions of the Bill before it came to be passed by the Central Legislature as the Partnership Act and reference was made in particular to the statement relating to Sec. 58 corresponding to Section 59 of the Partnership Act to the effect that the Registrar was a mere recording officer and that he had no discretion but to record the entry in the register of firms. We are unable to see how that statement can be taken into consideration for the purpose of interpreting the relevant provisions of the Partnership Act. We also cannot concur with the other reasoning of the High Court for coming to the conclusion that the partnership should be deemed to have been registered on the date when the application was presented and that the requirement of Rule 2 (b) would be satisfied if it became registered under the Partnership Act even after the application was filed. | 1 | 1,506 | 534 | ### Instruction:
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firm is not registered under the Indian Partnership Act, 1932 (1X of 1932) or where the deed of Partnership is not registered under the Indian Registration Act, 1908 (XVI of 1908), and the application for registration is being made for the first time under the Act, (i) Within a period of six months of the constitution of the firm or before the end of the previous year of the firm whichever is earlier, if the firm was constituted in that previous year, (ii) before the end of the previous year in any other case; (b) Where the firm is registered under the Indian Partnership Act, 1932. (IX of 1932) or where the deed of partnership is registered under the Indian Registration Act, (XVI of 1908) before the end of the previous year of the firm.........., Now it is common ground that the application for registration was not made within the period prescribed by Rule 2 (a). What has been urged throughout on behalf of the assessees is that the application to the Income tax Officer was governed by Rule 2 (b) and was in time as the firm should be deemed to have been registered not on the date on which it was actually registered by the Registrar of Firms but with effect from the date on which the application for registration was presented to the Registrar. In other words the firm should be considered to have been registered on October 20, 1955 on which date the statement under Section 58 of the Partnership Act was filed by the assessee before the Registrar of Firms. 4. The real question which has to be determined is whether the registration of a firm under the Partnership Act takes place with effect from the date on which the application for registration is made in accordance with Section 58 of that Act. Section 58 (1) provides that the registration of a firm may be effected at any time by sending by post or delivering to the Registrar of the area in which any place of business of the firm is situated or proposed to be situated a statement in the prescribed form and accompanied by the prescribed fee stating.........Under Section 59 when the Registrar is satisfied that the provisions of Section 58 have been duly complied with he shall record an entry of the statement in a register called the register of firms and shall file the statement. In Ram Prasad v. Kamta Prasad. AIR 1935 All 898 it was laid down that the registration of a firm under the Partnership Act takes place only when the necessary entry is made in the register of firms. Even under Section 69 of the Partnership Act which deals with the effect of non-registration it has been consistently held that the registration of a firm subsequent to the filing of the suit did not cure the defect; See Danmal Parshotamdas v. Baburam Chhotelal, ILR (1836) 58 All 495 (AIR 1936 All 3 ). Thus under the Partnership law it can be taken to have been settled by decisions of High Courts from a long time that the registration of a firm takes place only when the necessary entry is made in the register of firms under Section 59 of the Partnership Act by the Registrar. It is true that sub-section (l) of Section 58 employs language which without anything more may lend support to the view that the registration of a firm may be effected merely by sending an application which would mean that as soon as an application is sent and if entry is made under Section 59 pursuant to it the registration would be effective from the date when the application was presented. But Section 58 (1) is not to be read in isolation and has to be considered along with the scheme of the other provisions of the Act, namely, Section 59 and Section 69. The latter section may not have a direct bearing on the point under our consideration but it throws light on what was contemplated by the legislature with regard to the point of time when the firm could be regarded as registered. The Kerala High Court has in Kerala Road Lines Corporation v. Commr. of Income-tax Kerala. (1964) 51 ITR 711 = (AIR 1964 Kerala 251) clearly expressed the view that reading Sections 58 and 59 of the Indian Partnership Act together a firm cannot be said to be registered when the statement prescribed by Section 58 and the required fee are sent to the Registrar and that the registration of the firm is effected only when the entry of the statement is recorded in the register of firms and the statement is filed by the Registrar as provided in Sec. 59. In that case also an identically similar question arose in respect of registration of a firm under Section 26-A of the Income tax Act. 5. The High Court in the judgment under appeal referred to the statement extracted from the report of the Special Committee which had been appointed by the Government of India to examine the provisions of the Bill before it came to be passed by the Central Legislature as the Partnership Act and reference was made in particular to the statement relating to Sec. 58 corresponding to Section 59 of the Partnership Act to the effect that the Registrar was a mere recording officer and that he had no discretion but to record the entry in the register of firms. We are unable to see how that statement can be taken into consideration for the purpose of interpreting the relevant provisions of the Partnership Act. We also cannot concur with the other reasoning of the High Court for coming to the conclusion that the partnership should be deemed to have been registered on the date when the application was presented and that the requirement of Rule 2 (b) would be satisfied if it became registered under the Partnership Act even after the application was filed.
### Response:
1
### Explanation:
Thus under the Partnership law it can be taken to have been settled by decisions of High Courts from a long time that the registration of a firm takes place only when the necessary entry is made in the register of firms under Section 59 of the Partnership Act by the Registrar. It is true that sub-section (l) of Section 58 employs language which without anything more may lend support to the view that the registration of a firm may be effected merely by sending an application which would mean that as soon as an application is sent and if entry is made under Section 59 pursuant to it the registration would be effective from the date when the application was presented. But Section 58 (1) is not to be read in isolation and has to be considered along with the scheme of the other provisions of the Act, namely, Section 59 and Section 69. The latter section may not have a direct bearing on the point under our consideration but it throws light on what was contemplated by the legislature with regard to the point of time when the firm could be regarded as registered. The Kerala High Court has in Kerala Road Lines Corporation v. Commr. of Income-tax Kerala. (1964) 51 ITR 711 = (AIR 1964 Kerala 251) clearly expressed the view that reading Sections 58 and 59 of the Indian Partnership Act together a firm cannot be said to be registered when the statement prescribed by Section 58 and the required fee are sent to the Registrar and that the registration of the firm is effected only when the entry of the statement is recorded in the register of firms and the statement is filed by the Registrar as provided in Sec. 59. In that case also an identically similar question arose in respect of registration of a firm under Section 26-A of the Income tax Act5. The High Court in the judgment under appeal referred to the statement extracted from the report of the Special Committee which had been appointed by the Government of India to examine the provisions of the Bill before it came to be passed by the Central Legislature as the Partnership Act and reference was made in particular to the statement relating to Sec. 58 corresponding to Section 59 of the Partnership Act to the effect that the Registrar was a mere recording officer and that he had no discretion but to record the entry in the register of firms. We are unable to see how that statement can be taken into consideration for the purpose of interpreting the relevant provisions of the Partnership Act. We also cannot concur with the other reasoning of the High Court for coming to the conclusion that the partnership should be deemed to have been registered on the date when the application was presented and that the requirement of Rule 2 (b) would be satisfied if it became registered under the Partnership Act even after the application was filed.
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Registrar Of Co-Operative Societies, Trivandrum And Anr Vs. K. Kunhambu & Ors | the Act was to improve the economic and social conditions of peasants and ensure the full and efficient use of land for agricultural. Bearing in mind the Preamble and the material provisions of the Act, it was held that the power delegated was within permissible limits. 7. In Jyoti Pershad v. The Admi nistrator for the Union Territories of Delhi, (1) Rajagopala Ayyangar, J. made some useful observations which may be extracted here: In regard to this matter we desire to make two observations. In the context of modern conditions an d the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provisions for them. The Legislature therefore is forced to leave the authorities created by it an ample discretion limited, however, by the guidance afforded by the Act. This is the ratio of delegated legislation, and is a process which has come to stay, and which one ma y be permitted to observe is not without its advantages. So long therefore as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law. 8. In Mohammad Hussain Gulam Mohammad v. The State of Bombay, (2) the question was about the vires of s. 29 of the Bombay Agricultural Produce Markets Act. It gave power to the State Government to add to, or amend, or cancel any of the items of agricultural produce specified in the schedule in accordance with prevailing local conditions. The attack was on the ground that legislative power had been delegated to an extent not permissible. The Court while noticing that s. 29 itself did not provide for any criterion for deter mining which item of agricultural produce should be put into the schedule, nevertheless upheld its vires on the ground that guidance was writ large in the various provisions and the scheme of the Act. It was observed that in each case the State Government had to consider whether the volume of trade in the produce was of such a nature as to give rise to wholesale trade so as to merit inclusion in the schedule.Let us now turn to s. 60 of the Madras Cooperative Societies A ct, 1932 whose vires is in question and which is as follows:- S. 60: The State Government may, by general or special order, exempt any registered society from any of the provisions of this Act or may direct that such provisions shall apply to such society with such modifications as may be specified in the order. The provision is a near Henry VIII clause. But to give it a name is not to hang it. We must examine the preamble, the scheme and other available material to see if there are any discernible guidelines. Sure the Cooperative Societies Act is a welfare legislation. Its preamble proclaims: Whereas it is expedient further to facilitate the formation and working of co-operative societies for the promotion of thrift, self-help and mutual aid among agriculturists and other persons with common economic needs so as to bring about better living, better business and better methods of production and for that purpose to consolidate and amend the law relating to co-operative societies in the State of Madras. 9. The policy of the Act is there and so are the guidelines. Why the legislation ? To facilitate the formation and working of Cooperative Societies. Cooperative Societies, for what purpose ? For the promotion of thrift, self-help and mutual aid. Amongst whom ? Among agriculturists and other persons with common economic needs. To what end ? To bring about better living, better business and better methods of production. The objectives are clear; the guidelines are there. There are numerous provisions of the Act dealing with registration of societies, rights and liabilities of members , duties of registered societies, privileges of registered societies, property and funds of registered societies, inquiry and inspection, supersession of committees of societies, dissolution of societies, surcharge and attachment , arbitration etc. We refrain from referring to the details of the provisions except to say that they are generally designed to further the objectives set out in the preamble. But, numerous as the provisions are, they are not capable of meeting the extensive demands of the complex situations which may arise in the course of the working of the Act and the formation and the functioning of the societies. In fact, the too rigorous application of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the Act instead of advancing them. It is to provide for such situations that the Government is invested by s. 60 with a power to relax the occasional rigour of the provisions of the Ac t and to advance the objects of the Act. Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications. The power given to the Government under s. 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear. | 0[ds]Lawyers and judges have never ceased to be interested in the question of delegated legislation and since the Delhi Laws Act case, we have been blessed(?) by an abundance of authority, the blessing not necessarily unmixed. We do not wish, in this case, to search for the precise principles decided in the Delhi Laws Act case, nor to consider whether N. K. Papiah &Sons v. Excise Commissioner(1) beats the final retreat from the earlier position. For the purposes of this case we are content to accept the policy and guidelines theory and seek such assistance as we may derive from cases where near identical provisions have been consideredThe policy of the Act is there and so are the guidelines. Why the legislation ? To facilitate the formation and working of Cooperative Societies. Cooperative Societies, for what purpose ? For the promotion of thrift,p and mutual aid. Amongst whom ? Among agriculturists and other persons with common economic needs. To what end ? To bring about better living, better business and better methods of production. The objectives are clear; the guidelines are there. There are numerous provisions of the Act dealing with registration of societies, rights and liabilities of members , duties of registered societies, privileges of registered societies, property and funds of registered societies, inquiry and inspection, supersession of committees of societies, dissolution of societies, surcharge and attachment , arbitration etc. We refrain from referring to the details of the provisions except to say that they are generally designed to further the objectives set out in the preamble. But, numerous as the provisions are, they are not capable of meeting the extensive demands of the complex situations which may arise in the course of the working of the Act and the formation and the functioning of the societies. In fact, the too rigorous application of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the Act instead of advancing them. It is to provide for such situations that the Government is invested by s. 60 with a power to relax the occasional rigour of the provisions of the Ac t and to advance the objects of the Act. Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications. The power given to the Government under s. 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear.We are therefore of the view that s. 60 is not void on the ground of excessive delegation of legislative power. | 0 | 2,579 | 516 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
the Act was to improve the economic and social conditions of peasants and ensure the full and efficient use of land for agricultural. Bearing in mind the Preamble and the material provisions of the Act, it was held that the power delegated was within permissible limits. 7. In Jyoti Pershad v. The Admi nistrator for the Union Territories of Delhi, (1) Rajagopala Ayyangar, J. made some useful observations which may be extracted here: In regard to this matter we desire to make two observations. In the context of modern conditions an d the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provisions for them. The Legislature therefore is forced to leave the authorities created by it an ample discretion limited, however, by the guidance afforded by the Act. This is the ratio of delegated legislation, and is a process which has come to stay, and which one ma y be permitted to observe is not without its advantages. So long therefore as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law. 8. In Mohammad Hussain Gulam Mohammad v. The State of Bombay, (2) the question was about the vires of s. 29 of the Bombay Agricultural Produce Markets Act. It gave power to the State Government to add to, or amend, or cancel any of the items of agricultural produce specified in the schedule in accordance with prevailing local conditions. The attack was on the ground that legislative power had been delegated to an extent not permissible. The Court while noticing that s. 29 itself did not provide for any criterion for deter mining which item of agricultural produce should be put into the schedule, nevertheless upheld its vires on the ground that guidance was writ large in the various provisions and the scheme of the Act. It was observed that in each case the State Government had to consider whether the volume of trade in the produce was of such a nature as to give rise to wholesale trade so as to merit inclusion in the schedule.Let us now turn to s. 60 of the Madras Cooperative Societies A ct, 1932 whose vires is in question and which is as follows:- S. 60: The State Government may, by general or special order, exempt any registered society from any of the provisions of this Act or may direct that such provisions shall apply to such society with such modifications as may be specified in the order. The provision is a near Henry VIII clause. But to give it a name is not to hang it. We must examine the preamble, the scheme and other available material to see if there are any discernible guidelines. Sure the Cooperative Societies Act is a welfare legislation. Its preamble proclaims: Whereas it is expedient further to facilitate the formation and working of co-operative societies for the promotion of thrift, self-help and mutual aid among agriculturists and other persons with common economic needs so as to bring about better living, better business and better methods of production and for that purpose to consolidate and amend the law relating to co-operative societies in the State of Madras. 9. The policy of the Act is there and so are the guidelines. Why the legislation ? To facilitate the formation and working of Cooperative Societies. Cooperative Societies, for what purpose ? For the promotion of thrift, self-help and mutual aid. Amongst whom ? Among agriculturists and other persons with common economic needs. To what end ? To bring about better living, better business and better methods of production. The objectives are clear; the guidelines are there. There are numerous provisions of the Act dealing with registration of societies, rights and liabilities of members , duties of registered societies, privileges of registered societies, property and funds of registered societies, inquiry and inspection, supersession of committees of societies, dissolution of societies, surcharge and attachment , arbitration etc. We refrain from referring to the details of the provisions except to say that they are generally designed to further the objectives set out in the preamble. But, numerous as the provisions are, they are not capable of meeting the extensive demands of the complex situations which may arise in the course of the working of the Act and the formation and the functioning of the societies. In fact, the too rigorous application of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the Act instead of advancing them. It is to provide for such situations that the Government is invested by s. 60 with a power to relax the occasional rigour of the provisions of the Ac t and to advance the objects of the Act. Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications. The power given to the Government under s. 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear.
### Response:
0
### Explanation:
Lawyers and judges have never ceased to be interested in the question of delegated legislation and since the Delhi Laws Act case, we have been blessed(?) by an abundance of authority, the blessing not necessarily unmixed. We do not wish, in this case, to search for the precise principles decided in the Delhi Laws Act case, nor to consider whether N. K. Papiah &Sons v. Excise Commissioner(1) beats the final retreat from the earlier position. For the purposes of this case we are content to accept the policy and guidelines theory and seek such assistance as we may derive from cases where near identical provisions have been consideredThe policy of the Act is there and so are the guidelines. Why the legislation ? To facilitate the formation and working of Cooperative Societies. Cooperative Societies, for what purpose ? For the promotion of thrift,p and mutual aid. Amongst whom ? Among agriculturists and other persons with common economic needs. To what end ? To bring about better living, better business and better methods of production. The objectives are clear; the guidelines are there. There are numerous provisions of the Act dealing with registration of societies, rights and liabilities of members , duties of registered societies, privileges of registered societies, property and funds of registered societies, inquiry and inspection, supersession of committees of societies, dissolution of societies, surcharge and attachment , arbitration etc. We refrain from referring to the details of the provisions except to say that they are generally designed to further the objectives set out in the preamble. But, numerous as the provisions are, they are not capable of meeting the extensive demands of the complex situations which may arise in the course of the working of the Act and the formation and the functioning of the societies. In fact, the too rigorous application of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the Act instead of advancing them. It is to provide for such situations that the Government is invested by s. 60 with a power to relax the occasional rigour of the provisions of the Ac t and to advance the objects of the Act. Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications. The power given to the Government under s. 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear.We are therefore of the view that s. 60 is not void on the ground of excessive delegation of legislative power.
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Pacific Minerals (P) Ltd Vs. State of Madhya Pradesh & Another | Clause 2 of Part VI of the lease provided for the computation of royalty thus:"2. In order to arrive at the sale value of the manganese ore at the pits mouth for the purpose of assessing the royalty as herein before provided the lessee shall at the request of Lessor submit either yearly or half-yearly a statement showing the selling price of all or (at the option of the Lessor) a part of the ore carried away or exported from the said lands during the period asked for and giving a full and true account of the cost of carriage and freight and such other charges as are usually incurred in conveying and causing the same to be delivered to the purchasers in terms of the sales. The lessee shall at the same time submit audited books of accounts showing the percentage in units of the metal contained in every consignment of ore carried away or exported from the said lands or at the option of the Lessor signed copies of the analysis of the ore made by some firm of analytical chemists approved by the Lessor. And it is agreed that the value at the pits mouth of all ore so carried away or exported by the lessee/lessees upon which the aforesaid royalty is to be paid shall be taken to be the difference between the said selling price of the ore and the said charges incurred by the lessee up to the date of the delivery of the same as aforesaid the calculation being made upon the basis of the statements and figures contained in the accounts and other documents to be submitted by the lessee as above provided. The said royalty shall be calculated upon the said ore as and when the same shall be carried away or exported from the said lands or previous to its use for the extraction or preparation of manganese therefrom".3. The leases were granted under the Mining Manual of the Central Provinces and Berar then in force, and the appellant was required to submit to the Deputy Commissioner, Balaghat, half-yearly returns in Forms Nos. 7 and 7-A of Appendix B of Part A of the Mining Manual showing separately the selling price and the expenses incurred by him. The appellant submitted half-yearly returns ending June 30, 1951 and December 31, 1951. For the F. O. B. sales, the appellant claimed deduction of export duty levied by the Central Government under S. 28 of the Sea Customs Act, 1878 read with S. 2 and Second Schedule, item No. 7 of the Indian Tariff Act, 1934. For the F. O. R. sales, the appellant claimed deduction of sales tax chargeable under S. 4 of the Central Provinces and Berar Sales Tax Act, 1947. The Deputy Commissioner, Balaghat, assessed the royalty after disallowing the appellants claim for deduction of the export duty and sales tax. This assessment was confirmed by the State Government. The appellant paid the royalty and thereafter, filed a writ petition in the High Court of Madhya Pradesh challenging the assessment. The High Court dismissed the petition. The appellant now appeals to this Court by special leave.4. In computing the sale value of the manganese ore at the pits mouth, Cl. 2 of the mining lease allows deductions from the selling price of "the cost of carriage and freight and such other charges as are usually incurred in conveying and causing the same to be delivered to the purchasers in terms of the sales". We think, that this clause allows deduction of the charges incurred in conveying and delivering the manganese ore to the buyers in terms of the sales, such as the cost of carriage and freight and like charges. The other charges contemplated by the clause are of the same kind as cost of carriage and freight. This conclusion is reinforced if we refer to the standard Forms Nos. 7 and 7-A of Appendix B and Rule 50 (1) of Chap I of Part A of the Mining Manual, under which the leases were granted. Form No. 7 in respect of F. O. B. sales contemplates deduction of commission, port charges, railway freight, handling charges at rail head and in Bombay and transport to rail head. Form No. 7-A in respect of F. O. R. sales contemplates deduction of commission, handling charges at rail head and transport to rail head. The allowable deductions from the selling price less commission are thus the cost of carriage and freight and other like charges such as handling charges and port charges. Export duty on the F. O. B. sales and sales tax on the F. O. R. sales are not allowable deductions.5. In F. O. B. sales, the price is inclusive of the export duty. The appellant was required to pay the duty before the shipment under S. 137 of the Sea Customs Act, 1878. In terms of the sales, the appellant was required to place the goods on board the ship, and it could do this only on payment of the export duty. In other words, the delivery to the buyer in terms of the F. O. B. sale could not be made without paying the export duty. Nevertheless, the export duty is not, like transport and freight charges, an expense incurred in conveying and causing delivery of the ore to the buyer.6. Under the sale contracts, the appellant was bound to pay and bear the sales tax on its own account. As a dealer, the appellant was chargeable with sales tax on its turnover. The sales tax is not an expense incidental to conveyance and delivery of the ore to the buyer, and is not an allowable deduction.7. No valid ground is shown for quashing the assessment and the High Court rightly dismissed the petition. In the circumstances, it is not necessary to consider the further question whether recourse to Art. 226 of the Constitution was misconceived and the appellants proper remedy was to sue for refund of the royalty. | 0[ds]This conclusion is reinforced if we refer to the standard Forms Nos. 7 andof Appendix B and Rule 50 (1) of Chap I of Part A of the Mining Manual, under which the leases were granted. Form No. 7 in respect of F. O. B. sales contemplates deduction of commission, port charges, railway freight, handling charges at rail head and in Bombay and transport to rail head. Form No.in respect of F. O. R. sales contemplates deduction of commission, handling charges at rail head and transport to rail head. The allowable deductions from the selling price less commission are thus the cost of carriage and freight and other like charges such as handling charges and port charges. Export duty on the F. O. B. sales and sales tax on the F. O. R. sales are not allowable deductions.5. In F. O. B. sales, the price is inclusive of the export duty. The appellant was required to pay the duty before the shipment under S. 137 of the Sea Customs Act, 1878. In terms of the sales, the appellant was required to place the goods on board the ship, and it could do this only on payment of the export duty. In other words, the delivery to the buyer in terms of the F. O. B. sale could not be made without paying the export duty. Nevertheless, the export duty is not, like transport and freight charges, an expense incurred in conveying and causing delivery of the ore to the buyer.6. Under the sale contracts, the appellant was bound to pay and bear the sales tax on its own account. As a dealer, the appellant was chargeable with sales tax on its turnover. The sales tax is not an expense incidental to conveyance and delivery of the ore to the buyer, and is not an allowable deduction.7. No valid ground is shown for quashing the assessment and the High Court rightly dismissed the petition. In the circumstances, it is not necessary to consider the further question whether recourse to Art. 226 of the Constitution was misconceived and the appellants proper remedy was to sue for refund of the royalty. | 0 | 1,235 | 403 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
Clause 2 of Part VI of the lease provided for the computation of royalty thus:"2. In order to arrive at the sale value of the manganese ore at the pits mouth for the purpose of assessing the royalty as herein before provided the lessee shall at the request of Lessor submit either yearly or half-yearly a statement showing the selling price of all or (at the option of the Lessor) a part of the ore carried away or exported from the said lands during the period asked for and giving a full and true account of the cost of carriage and freight and such other charges as are usually incurred in conveying and causing the same to be delivered to the purchasers in terms of the sales. The lessee shall at the same time submit audited books of accounts showing the percentage in units of the metal contained in every consignment of ore carried away or exported from the said lands or at the option of the Lessor signed copies of the analysis of the ore made by some firm of analytical chemists approved by the Lessor. And it is agreed that the value at the pits mouth of all ore so carried away or exported by the lessee/lessees upon which the aforesaid royalty is to be paid shall be taken to be the difference between the said selling price of the ore and the said charges incurred by the lessee up to the date of the delivery of the same as aforesaid the calculation being made upon the basis of the statements and figures contained in the accounts and other documents to be submitted by the lessee as above provided. The said royalty shall be calculated upon the said ore as and when the same shall be carried away or exported from the said lands or previous to its use for the extraction or preparation of manganese therefrom".3. The leases were granted under the Mining Manual of the Central Provinces and Berar then in force, and the appellant was required to submit to the Deputy Commissioner, Balaghat, half-yearly returns in Forms Nos. 7 and 7-A of Appendix B of Part A of the Mining Manual showing separately the selling price and the expenses incurred by him. The appellant submitted half-yearly returns ending June 30, 1951 and December 31, 1951. For the F. O. B. sales, the appellant claimed deduction of export duty levied by the Central Government under S. 28 of the Sea Customs Act, 1878 read with S. 2 and Second Schedule, item No. 7 of the Indian Tariff Act, 1934. For the F. O. R. sales, the appellant claimed deduction of sales tax chargeable under S. 4 of the Central Provinces and Berar Sales Tax Act, 1947. The Deputy Commissioner, Balaghat, assessed the royalty after disallowing the appellants claim for deduction of the export duty and sales tax. This assessment was confirmed by the State Government. The appellant paid the royalty and thereafter, filed a writ petition in the High Court of Madhya Pradesh challenging the assessment. The High Court dismissed the petition. The appellant now appeals to this Court by special leave.4. In computing the sale value of the manganese ore at the pits mouth, Cl. 2 of the mining lease allows deductions from the selling price of "the cost of carriage and freight and such other charges as are usually incurred in conveying and causing the same to be delivered to the purchasers in terms of the sales". We think, that this clause allows deduction of the charges incurred in conveying and delivering the manganese ore to the buyers in terms of the sales, such as the cost of carriage and freight and like charges. The other charges contemplated by the clause are of the same kind as cost of carriage and freight. This conclusion is reinforced if we refer to the standard Forms Nos. 7 and 7-A of Appendix B and Rule 50 (1) of Chap I of Part A of the Mining Manual, under which the leases were granted. Form No. 7 in respect of F. O. B. sales contemplates deduction of commission, port charges, railway freight, handling charges at rail head and in Bombay and transport to rail head. Form No. 7-A in respect of F. O. R. sales contemplates deduction of commission, handling charges at rail head and transport to rail head. The allowable deductions from the selling price less commission are thus the cost of carriage and freight and other like charges such as handling charges and port charges. Export duty on the F. O. B. sales and sales tax on the F. O. R. sales are not allowable deductions.5. In F. O. B. sales, the price is inclusive of the export duty. The appellant was required to pay the duty before the shipment under S. 137 of the Sea Customs Act, 1878. In terms of the sales, the appellant was required to place the goods on board the ship, and it could do this only on payment of the export duty. In other words, the delivery to the buyer in terms of the F. O. B. sale could not be made without paying the export duty. Nevertheless, the export duty is not, like transport and freight charges, an expense incurred in conveying and causing delivery of the ore to the buyer.6. Under the sale contracts, the appellant was bound to pay and bear the sales tax on its own account. As a dealer, the appellant was chargeable with sales tax on its turnover. The sales tax is not an expense incidental to conveyance and delivery of the ore to the buyer, and is not an allowable deduction.7. No valid ground is shown for quashing the assessment and the High Court rightly dismissed the petition. In the circumstances, it is not necessary to consider the further question whether recourse to Art. 226 of the Constitution was misconceived and the appellants proper remedy was to sue for refund of the royalty.
### Response:
0
### Explanation:
This conclusion is reinforced if we refer to the standard Forms Nos. 7 andof Appendix B and Rule 50 (1) of Chap I of Part A of the Mining Manual, under which the leases were granted. Form No. 7 in respect of F. O. B. sales contemplates deduction of commission, port charges, railway freight, handling charges at rail head and in Bombay and transport to rail head. Form No.in respect of F. O. R. sales contemplates deduction of commission, handling charges at rail head and transport to rail head. The allowable deductions from the selling price less commission are thus the cost of carriage and freight and other like charges such as handling charges and port charges. Export duty on the F. O. B. sales and sales tax on the F. O. R. sales are not allowable deductions.5. In F. O. B. sales, the price is inclusive of the export duty. The appellant was required to pay the duty before the shipment under S. 137 of the Sea Customs Act, 1878. In terms of the sales, the appellant was required to place the goods on board the ship, and it could do this only on payment of the export duty. In other words, the delivery to the buyer in terms of the F. O. B. sale could not be made without paying the export duty. Nevertheless, the export duty is not, like transport and freight charges, an expense incurred in conveying and causing delivery of the ore to the buyer.6. Under the sale contracts, the appellant was bound to pay and bear the sales tax on its own account. As a dealer, the appellant was chargeable with sales tax on its turnover. The sales tax is not an expense incidental to conveyance and delivery of the ore to the buyer, and is not an allowable deduction.7. No valid ground is shown for quashing the assessment and the High Court rightly dismissed the petition. In the circumstances, it is not necessary to consider the further question whether recourse to Art. 226 of the Constitution was misconceived and the appellants proper remedy was to sue for refund of the royalty.
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M/S.Anand Buttons Ltd Vs. State Of Haryana | Areas (Restriction of Unregulated Development) Act, 1963 and the Rules framed thereunder, the said illegality appears to have been compounded and the construction had been regularized. 10. The affidavits filed by the Director of Industries and the District Town Planner also suggest that the acquisition of land was for setting up of Phase-IV of Industrial Estate, Kundli, which work was being supervised by the Haryana State Industrial Development Corporation appointed as the nodal agency by the State Government for rapid industrialization of the State. The High Court pointed out that, in these circumstances, the failure of the State Government itself to file a return would not be fatal, as the nodal agency, who was entrusted with the work, had filed affidavits of the competent officers, who were in the know of facts. It also came to the conclusion that the action of the Director of Industries, Haryana, calling upon for comments from the Haryana State Industrial Development Corporation, and the action of the State Government in considering their comments before taking a final decision for issuance of the notification under Section 6 of the Act, was neither vitiated, nor illegal. The High Court also noticed that the land of the present appellants was sandwiched between Phase-I and Phase-II of the Industrial Estate, Kundli. Consequently, leaving a part of the open had would jeopardize the planned development of the industrial establishment. 11. This reasoning of the High Court cannot be faulted for the simple reason that the authority, who has to carry out the planned development of the industrial estate, is in the best position to judge as to which land can be exempted from the acquisition without jeopardizing the development scheme. It is not possible for the court to sit in appeal over the exercise of such satisfaction by the authority vested with the task of implementing the development plan. 12. The learned counsel for the appellants urged that the decision taken for exempting M/s. Dinar Spinning Mills (P) Ltd., M/s. Amar Elastomers (P) Ltd. and M/s. K.C. Fibre Ltd. was not a principled one and that there was no uniform yardstick applied for exemption of the said units from acquisition. It was urged that, although the State Government had ostensibly decided to exempt the said three units on the basis of construction put up and industrial units being set up, this was really not true in the case of these three units. In our view, it is unnecessary for us to enter into this controversy. Even if we assume that the three units, who were exempted, did not qualify under the standard adopted by the State Government for exemption, at the highest, it would make the exemption granted to them vulnerable. None of them was made party to the writ petitions filed before the High Court, nor was any relief claimed against them. Even assuming that the exemption granted to the said three units was erroneous and illegal, Article 14 does not mandate that the appellants should be granted similar illegal and unjustified relief. As said by this Court in Union of India and another vs. International Trading Co. and another (2003) 5 SCC 437 ) to which one of us, (Shivaraj vs. Patil, J.) was a party, (vide Para 13). ... It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short the Constitution) cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. 13. It is trite law that not only land but also structure on land can be acquired under the Act. As to whether in a given set of circumstances certain land should be exempted from acquisition only for the reason that some construction had been carried out, is a matter of policy, and not of law. If after considering all the circumstances, the State Government has taken the view that exemption of the lands of the lands of the appellants would render askew the development scheme of the industrial estate, it is not possible for the High Court or this Court to interfere with the satisfaction of the concerned authorities. We see no ground on which the appellants could have maintained that their lands should be exempted from acquisition. Even if three of the parties had been wrongly exempted from acquisition, that gives no right to the appellants to seek similar relief. 14. It is rightly pointed out by the High Court that, merely because a representation was made by the Director, Town and Country Planning, that upon gift of certain land to the Gram Panchayat for widening of the passage, permission for change of user of land would be granted, such a promise is not one capable of being enforced against the State Government. The High Court has rightly pointed out that, if the appellants are so desirous, they may seek invalidation of the gifts in favour of the Gram Panchayat on the ground of failure of the Director, Town and Country Planning to fulfil his commitment. That, however, does not render the acquisition proceedings illegal. 15. No other ground has been made out. In our view, therefore, no fault can be found with the judgment rendered by the Division Bench. | 0[ds]8. The High Court has carefully considered and evaluated the contentions urged by thes in the light of the material placed before it. The High Court noticed that the cases of all the seven units were examined and recommended for exemption from acquisition by the Land Acquisition Collector, who was of the view that, each one of the units had taken considerable steps towards establishment of an industrial unit. The General Manager, District Industries Centre, Sonepat, after examining the individual cases, reported that the facts found in the report of the Land Acquisition Collector were correct, but made no recommendation with regard to the acquisition proceedings. He reported : all the parties have been heard in person except the representative of M/s. Anand Buttons Ltd., who did not turn up for verification of the facts on the given date. The General Manager, District Industries Centre pointed out: all the parties have expressed their desire to set up an industry on this land within a period of two years, if released. But none of them has so far taken up a tangible step on the land. The land of all these parties but together, is surrounded by Industrial Area already existing at HSIDC, Kundli. These parties have also stated that they would not sell the plot further but will themselves set up an industry on it. In the case of M/s. Kundli Agro Pvt. Ltd., however he suggested that its case deserves a sympathetical attitude, in view of the land of 3 Kanals and 11 Marlas gifted by it for making a path way. Finally, it was reported, keeping all these things in view, the Headquarter may take a suitable action9. The State Government did not file an affidavit in reply to oppose the writ petitions, but instead, authorized the Director of Industries and the District Town Planner of the Haryana State Industrial Development Corporation to do so. The affidavits filed by these officers showed that M/s. Dinar Spinning Mills, M/s. Industrial Roller Co. (who were the subsequent purchasers of land from M/s. Amar Elastomers) and M/s. K.C. Fibres, had, not only constructed the factory building after obtaining the permission, but had also started manufacturing of goods. In all other cases, including the case of M/s. Anand Buttons Ltd., there were no tangible steps taken for erection of factory building, much less had industrial production commenced. The State Government took the view that there was justifiable difference between the cases of M/s. Dinar Spinning Mills, M/s. Industrial Roller Co., M/s. K.C. Fibres on the one hand and those of the present appellants on the other. Although, M/s. K.C. Fibres was alleged to have carried out a construction in violation of the provisions of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 and the Rules framed thereunder, the said illegality appears to have been compounded and the construction had been regularized10. The affidavits filed by the Director of Industries and the District Town Planner also suggest that the acquisition of land was for setting up ofV of Industrial Estate, Kundli, which work was being supervised by the Haryana State Industrial Development Corporation appointed as the nodal agency by the State Government for rapid industrialization of the State. The High Court pointed out that, in these circumstances, the failure of the State Government itself to file a return would not be fatal, as the nodal agency, who was entrusted with the work, had filed affidavits of the competent officers, who were in the know of facts. It also came to the conclusion that the action of the Director of Industries, Haryana, calling upon for comments from the Haryana State Industrial Development Corporation, and the action of the State Government in considering their comments before taking a final decision for issuance of the notification under Section 6 of the Act, was neither vitiated, nor illegal. The High Court also noticed that the land of the present appellants was sandwiched betweenI of the Industrial Estate, Kundli. Consequently, leaving a part of the open had would jeopardize the planned development of the industrial establishment11. This reasoning of the High Court cannot be faulted for the simple reason that the authority, who has to carry out the planned development of the industrial estate, is in the best position to judge as to which land can be exempted from the acquisition without jeopardizing the development scheme. It is not possible for the court to sit in appeal over the exercise of such satisfaction by the authority vested with the task of implementing the development planEven if we assume that the three units, who were exempted, did not qualify under the standard adopted by the State Government for exemption, at the highest, it would make the exemption granted to them vulnerable. None of them was made party to the writ petitions filed before the High Court, nor was any relief claimed against them. Even assuming that the exemption granted to the said three units was erroneous and illegal, Article 14 does not mandate that the appellants should be granted similar illegal and unjustified relief13. It is trite law that not only land but also structure on land can be acquired under the Act. As to whether in a given set of circumstances certain land should be exempted from acquisition only for the reason that some construction had been carried out, is a matter of policy, and not of law. If after considering all the circumstances, the State Government has taken the view that exemption of the lands of the lands of the appellants would render askew the development scheme of the industrial estate, it is not possible for the High Court or this Court to interfere with the satisfaction of the concerned authorities. We see no ground on which the appellants could have maintained that their lands should be exempted from acquisition. Even if three of the parties had been wrongly exempted from acquisition, that gives no right to the appellants to seek similar relief14. It is rightly pointed out by the High Court that, merely because a representation was made by the Director, Town and Country Planning, that upon gift of certain land to the Gram Panchayat for widening of the passage, permission for change of user of land would be granted, such a promise is not one capable of being enforced against the State Government. The High Court has rightly pointed out that, if the appellants are so desirous, they may seek invalidation of the gifts in favour of the Gram Panchayat on the ground of failure of the Director, Town and Country Planning to fulfil his commitment. That, however, does not render the acquisition proceedings illegal15. No other ground has been made out. In our view, therefore, no fault can be found with the judgment rendered by the Division Bench. | 0 | 3,117 | 1,270 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
Areas (Restriction of Unregulated Development) Act, 1963 and the Rules framed thereunder, the said illegality appears to have been compounded and the construction had been regularized. 10. The affidavits filed by the Director of Industries and the District Town Planner also suggest that the acquisition of land was for setting up of Phase-IV of Industrial Estate, Kundli, which work was being supervised by the Haryana State Industrial Development Corporation appointed as the nodal agency by the State Government for rapid industrialization of the State. The High Court pointed out that, in these circumstances, the failure of the State Government itself to file a return would not be fatal, as the nodal agency, who was entrusted with the work, had filed affidavits of the competent officers, who were in the know of facts. It also came to the conclusion that the action of the Director of Industries, Haryana, calling upon for comments from the Haryana State Industrial Development Corporation, and the action of the State Government in considering their comments before taking a final decision for issuance of the notification under Section 6 of the Act, was neither vitiated, nor illegal. The High Court also noticed that the land of the present appellants was sandwiched between Phase-I and Phase-II of the Industrial Estate, Kundli. Consequently, leaving a part of the open had would jeopardize the planned development of the industrial establishment. 11. This reasoning of the High Court cannot be faulted for the simple reason that the authority, who has to carry out the planned development of the industrial estate, is in the best position to judge as to which land can be exempted from the acquisition without jeopardizing the development scheme. It is not possible for the court to sit in appeal over the exercise of such satisfaction by the authority vested with the task of implementing the development plan. 12. The learned counsel for the appellants urged that the decision taken for exempting M/s. Dinar Spinning Mills (P) Ltd., M/s. Amar Elastomers (P) Ltd. and M/s. K.C. Fibre Ltd. was not a principled one and that there was no uniform yardstick applied for exemption of the said units from acquisition. It was urged that, although the State Government had ostensibly decided to exempt the said three units on the basis of construction put up and industrial units being set up, this was really not true in the case of these three units. In our view, it is unnecessary for us to enter into this controversy. Even if we assume that the three units, who were exempted, did not qualify under the standard adopted by the State Government for exemption, at the highest, it would make the exemption granted to them vulnerable. None of them was made party to the writ petitions filed before the High Court, nor was any relief claimed against them. Even assuming that the exemption granted to the said three units was erroneous and illegal, Article 14 does not mandate that the appellants should be granted similar illegal and unjustified relief. As said by this Court in Union of India and another vs. International Trading Co. and another (2003) 5 SCC 437 ) to which one of us, (Shivaraj vs. Patil, J.) was a party, (vide Para 13). ... It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short the Constitution) cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. 13. It is trite law that not only land but also structure on land can be acquired under the Act. As to whether in a given set of circumstances certain land should be exempted from acquisition only for the reason that some construction had been carried out, is a matter of policy, and not of law. If after considering all the circumstances, the State Government has taken the view that exemption of the lands of the lands of the appellants would render askew the development scheme of the industrial estate, it is not possible for the High Court or this Court to interfere with the satisfaction of the concerned authorities. We see no ground on which the appellants could have maintained that their lands should be exempted from acquisition. Even if three of the parties had been wrongly exempted from acquisition, that gives no right to the appellants to seek similar relief. 14. It is rightly pointed out by the High Court that, merely because a representation was made by the Director, Town and Country Planning, that upon gift of certain land to the Gram Panchayat for widening of the passage, permission for change of user of land would be granted, such a promise is not one capable of being enforced against the State Government. The High Court has rightly pointed out that, if the appellants are so desirous, they may seek invalidation of the gifts in favour of the Gram Panchayat on the ground of failure of the Director, Town and Country Planning to fulfil his commitment. That, however, does not render the acquisition proceedings illegal. 15. No other ground has been made out. In our view, therefore, no fault can be found with the judgment rendered by the Division Bench.
### Response:
0
### Explanation:
The General Manager, District Industries Centre pointed out: all the parties have expressed their desire to set up an industry on this land within a period of two years, if released. But none of them has so far taken up a tangible step on the land. The land of all these parties but together, is surrounded by Industrial Area already existing at HSIDC, Kundli. These parties have also stated that they would not sell the plot further but will themselves set up an industry on it. In the case of M/s. Kundli Agro Pvt. Ltd., however he suggested that its case deserves a sympathetical attitude, in view of the land of 3 Kanals and 11 Marlas gifted by it for making a path way. Finally, it was reported, keeping all these things in view, the Headquarter may take a suitable action9. The State Government did not file an affidavit in reply to oppose the writ petitions, but instead, authorized the Director of Industries and the District Town Planner of the Haryana State Industrial Development Corporation to do so. The affidavits filed by these officers showed that M/s. Dinar Spinning Mills, M/s. Industrial Roller Co. (who were the subsequent purchasers of land from M/s. Amar Elastomers) and M/s. K.C. Fibres, had, not only constructed the factory building after obtaining the permission, but had also started manufacturing of goods. In all other cases, including the case of M/s. Anand Buttons Ltd., there were no tangible steps taken for erection of factory building, much less had industrial production commenced. The State Government took the view that there was justifiable difference between the cases of M/s. Dinar Spinning Mills, M/s. Industrial Roller Co., M/s. K.C. Fibres on the one hand and those of the present appellants on the other. Although, M/s. K.C. Fibres was alleged to have carried out a construction in violation of the provisions of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 and the Rules framed thereunder, the said illegality appears to have been compounded and the construction had been regularized10. The affidavits filed by the Director of Industries and the District Town Planner also suggest that the acquisition of land was for setting up ofV of Industrial Estate, Kundli, which work was being supervised by the Haryana State Industrial Development Corporation appointed as the nodal agency by the State Government for rapid industrialization of the State. The High Court pointed out that, in these circumstances, the failure of the State Government itself to file a return would not be fatal, as the nodal agency, who was entrusted with the work, had filed affidavits of the competent officers, who were in the know of facts. It also came to the conclusion that the action of the Director of Industries, Haryana, calling upon for comments from the Haryana State Industrial Development Corporation, and the action of the State Government in considering their comments before taking a final decision for issuance of the notification under Section 6 of the Act, was neither vitiated, nor illegal. The High Court also noticed that the land of the present appellants was sandwiched betweenI of the Industrial Estate, Kundli. Consequently, leaving a part of the open had would jeopardize the planned development of the industrial establishment11. This reasoning of the High Court cannot be faulted for the simple reason that the authority, who has to carry out the planned development of the industrial estate, is in the best position to judge as to which land can be exempted from the acquisition without jeopardizing the development scheme. It is not possible for the court to sit in appeal over the exercise of such satisfaction by the authority vested with the task of implementing the development planEven if we assume that the three units, who were exempted, did not qualify under the standard adopted by the State Government for exemption, at the highest, it would make the exemption granted to them vulnerable. None of them was made party to the writ petitions filed before the High Court, nor was any relief claimed against them. Even assuming that the exemption granted to the said three units was erroneous and illegal, Article 14 does not mandate that the appellants should be granted similar illegal and unjustified relief13. It is trite law that not only land but also structure on land can be acquired under the Act. As to whether in a given set of circumstances certain land should be exempted from acquisition only for the reason that some construction had been carried out, is a matter of policy, and not of law. If after considering all the circumstances, the State Government has taken the view that exemption of the lands of the lands of the appellants would render askew the development scheme of the industrial estate, it is not possible for the High Court or this Court to interfere with the satisfaction of the concerned authorities. We see no ground on which the appellants could have maintained that their lands should be exempted from acquisition. Even if three of the parties had been wrongly exempted from acquisition, that gives no right to the appellants to seek similar relief14. It is rightly pointed out by the High Court that, merely because a representation was made by the Director, Town and Country Planning, that upon gift of certain land to the Gram Panchayat for widening of the passage, permission for change of user of land would be granted, such a promise is not one capable of being enforced against the State Government. The High Court has rightly pointed out that, if the appellants are so desirous, they may seek invalidation of the gifts in favour of the Gram Panchayat on the ground of failure of the Director, Town and Country Planning to fulfil his commitment. That, however, does not render the acquisition proceedings illegal15. No other ground has been made out. In our view, therefore, no fault can be found with the judgment rendered by the Division Bench.
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National Insurance Co. Ltd Vs. Rekhaben and Ors | the accidental injury or death, in order to be deductible from the amount of compensation. Hence, this Court refused to deduct the said amount from the amount of compensation receivable on account of the motor accident. The facts of the case in Vimal Kanwar and Ors. v. Kishore Dan & Ors. (2013) 7 SCC 476. are similar to the facts of the cases in hand. The contention in the said case was that the amount of salary receivable by the claimant appointed on compassionate ground was deductible from the amount of compensation which the claimant was entitled to receive Under Section 168 of the Motor Vehicles Act, 1988. This Court rejected the said contention and observed as follows: 21. "Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependants, one of the dependants may request for compassionate appointment to maintain the family of the deceased employee who dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of ones death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependants may be entitled for compassionate appointment but that cannot be termed as "pecuniary advantage" that comes under the periphery of the Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act. 15. In the case of Reliance General Insurance Co. Limited v. Shashi Sharma & Ors. (2016) 9 SCC 627 , this Court permitted the deduction of the amount receivable by the claimant under the scheme of the 2006 Rules framed by the State of Haryana which provided a grant of compassionate assistance by way of ex gratia financial assistance on compassionate grounds to the members of the family of a deceased government employee who died while in service/missing government employee. 16. The financial assistance was a sum equal to the pay and other allowances that were last drawn by the deceased employee in the normal course without raising a specific claim for periods up to 15 years from the date of the death of the employee if the employee had not attained the age of 35 years, and lesser periods of 12 years and 7 years depending on the age of the employee at the time of death. The family was eligible to receive family pension only after the period of financial assistance was completed. The Court held that ex gratia financial assistance was liable to be deducted on the ground that the claimant was eligible to it on account of the same event in which the compensation was claimed under the Motor Vehicles Act, 1988, i.e. the death of the employee. 17. This case seems to superficially support the case of the Appellant Insurance Company before us. However, on a deeper consideration, it does not. In Reliance General Insurance (supra), the family of the deceased employee became entitled to financial assistance of a sum equal to the pay and other allowances that were last drawn by the deceased for a certain period after his death, even without raising a specific claim. In other words the family became entitled to the pay & allowances that the deceased would have received if he would have not died, for a certain period of time. This financial scheme resulted in paying the family the same pay and allowances for a certain period and thus in effect clearly offsetting the loss of income on account of the death of the deceased. Thus, the amount of financial assistance had to be excluded from the loss of income, as to that extent there was no loss of income, and the compensation receivable by the family had to be reduced from the amount receivable under the Motor Vehicles Act. 18. In the present cases, the claimants were offered compassionate employment. The claimants were not offered any sum of money equal to the income of the deceased. In fact, they were not offered any sum of money at all. They were offered employment and the money they receive in the form of their salary, would be earned from such employment. The loss of income in such cases cannot be said to be set off because the claimants would be earning their living. Therefore, we are of the view that the amount earned by the claimants from compassionate appointments cannot be deducted from the quantum of compensation receivable by them under the Act. 19. In the cases before us, compensation is claimed from the owner of the offending vehicle who is different from the employer who has offered employment on compassionate grounds to the dependants of the deceased/injured. The source from which compensation on account of the accident is claimed and the source from which the compassionate employment is offered, are completely separate and there is no co-relation between these two sources. Since the tortfeasor has not offered the compassionate appointment, we are of the view that an amount which a claimant earns by his labour or by offering his services, whether by reason of compassionate appointment or otherwise is not liable to be deducted from the compensation which the claimant is entitled to receive from a tortfeasor under the Act. In such a situation, we are of the view that the financial benefit of the compassionate employment is not liable to be deducted at all from the compensation amount which is liable to be paid either by the owner/the driver of the offending vehicle or the insurer. | 0[ds]In the facts and circumstances of the case, this Court took the view that the salary which flowed from the compassionate appointment offered by the tortfeasor, was liable to be deducted from the compensation which was payable by the same employer in his capacity as the owner of the offending vehicle. We find this decision as being of no assistance to the Appellant in the cases before us. In the present cases, the owner of the offending vehicle is not the employer who offered the compassionate appointment. As observed earlier, it is difficult to see how the owner can contend that the compensation which he is liable to pay for causing the death or disability should be reduced because of compassionate employment offered by another. In any case, it is difficult to determine how much the person offered compassionate appointment would earn over the period of employment which is not certain, and deduct that amount from the compensation17. This case seems to superficially support the case of the Appellant Insurance Company before us. However, on a deeper consideration, it does not. In Reliance General Insurance (supra), the family of the deceased employee became entitled to financial assistance of a sum equal to the pay and other allowances that were last drawn by the deceased for a certain period after his death, even without raising a specific claim. In other words the family became entitled to the pay & allowances that the deceased would have received if he would have not died, for a certain period of time. This financial scheme resulted in paying the family the same pay and allowances for a certain period and thus in effect clearly offsetting the loss of income on account of the death of the deceased. Thus, the amount of financial assistance had to be excluded from the loss of income, as to that extent there was no loss of income, and the compensation receivable by the family had to be reduced from the amount receivable under the Motor Vehicles Act18. In the present cases, the claimants were offered compassionate employment. The claimants were not offered any sum of money equal to the income of the deceased. In fact, they were not offered any sum of money at all. They were offered employment and the money they receive in the form of their salary, would be earned from such employment. The loss of income in such cases cannot be said to be set off because the claimants would be earning their living. Therefore, we are of the view that the amount earned by the claimants from compassionate appointments cannot be deducted from the quantum of compensation receivable by them under the Act19. In the cases before us, compensation is claimed from the owner of the offending vehicle who is different from the employer who has offered employment on compassionate grounds to the dependants of the deceased/injured. The source from which compensation on account of the accident is claimed and the source from which the compassionate employment is offered, are completely separate and there is no co-relation between these two sources. Since the tortfeasor has not offered the compassionate appointment, we are of the view that an amount which a claimant earns by his labour or by offering his services, whether by reason of compassionate appointment or otherwise is not liable to be deducted from the compensation which the claimant is entitled to receive from a tortfeasor under the Act. In such a situation, we are of the view that the financial benefit of the compassionate employment is not liable to be deducted at all from the compensation amount which is liable to be paid either by the owner/the driver of the offending vehicle or the insurer. | 0 | 3,573 | 674 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
the accidental injury or death, in order to be deductible from the amount of compensation. Hence, this Court refused to deduct the said amount from the amount of compensation receivable on account of the motor accident. The facts of the case in Vimal Kanwar and Ors. v. Kishore Dan & Ors. (2013) 7 SCC 476. are similar to the facts of the cases in hand. The contention in the said case was that the amount of salary receivable by the claimant appointed on compassionate ground was deductible from the amount of compensation which the claimant was entitled to receive Under Section 168 of the Motor Vehicles Act, 1988. This Court rejected the said contention and observed as follows: 21. "Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependants, one of the dependants may request for compassionate appointment to maintain the family of the deceased employee who dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of ones death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependants may be entitled for compassionate appointment but that cannot be termed as "pecuniary advantage" that comes under the periphery of the Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act. 15. In the case of Reliance General Insurance Co. Limited v. Shashi Sharma & Ors. (2016) 9 SCC 627 , this Court permitted the deduction of the amount receivable by the claimant under the scheme of the 2006 Rules framed by the State of Haryana which provided a grant of compassionate assistance by way of ex gratia financial assistance on compassionate grounds to the members of the family of a deceased government employee who died while in service/missing government employee. 16. The financial assistance was a sum equal to the pay and other allowances that were last drawn by the deceased employee in the normal course without raising a specific claim for periods up to 15 years from the date of the death of the employee if the employee had not attained the age of 35 years, and lesser periods of 12 years and 7 years depending on the age of the employee at the time of death. The family was eligible to receive family pension only after the period of financial assistance was completed. The Court held that ex gratia financial assistance was liable to be deducted on the ground that the claimant was eligible to it on account of the same event in which the compensation was claimed under the Motor Vehicles Act, 1988, i.e. the death of the employee. 17. This case seems to superficially support the case of the Appellant Insurance Company before us. However, on a deeper consideration, it does not. In Reliance General Insurance (supra), the family of the deceased employee became entitled to financial assistance of a sum equal to the pay and other allowances that were last drawn by the deceased for a certain period after his death, even without raising a specific claim. In other words the family became entitled to the pay & allowances that the deceased would have received if he would have not died, for a certain period of time. This financial scheme resulted in paying the family the same pay and allowances for a certain period and thus in effect clearly offsetting the loss of income on account of the death of the deceased. Thus, the amount of financial assistance had to be excluded from the loss of income, as to that extent there was no loss of income, and the compensation receivable by the family had to be reduced from the amount receivable under the Motor Vehicles Act. 18. In the present cases, the claimants were offered compassionate employment. The claimants were not offered any sum of money equal to the income of the deceased. In fact, they were not offered any sum of money at all. They were offered employment and the money they receive in the form of their salary, would be earned from such employment. The loss of income in such cases cannot be said to be set off because the claimants would be earning their living. Therefore, we are of the view that the amount earned by the claimants from compassionate appointments cannot be deducted from the quantum of compensation receivable by them under the Act. 19. In the cases before us, compensation is claimed from the owner of the offending vehicle who is different from the employer who has offered employment on compassionate grounds to the dependants of the deceased/injured. The source from which compensation on account of the accident is claimed and the source from which the compassionate employment is offered, are completely separate and there is no co-relation between these two sources. Since the tortfeasor has not offered the compassionate appointment, we are of the view that an amount which a claimant earns by his labour or by offering his services, whether by reason of compassionate appointment or otherwise is not liable to be deducted from the compensation which the claimant is entitled to receive from a tortfeasor under the Act. In such a situation, we are of the view that the financial benefit of the compassionate employment is not liable to be deducted at all from the compensation amount which is liable to be paid either by the owner/the driver of the offending vehicle or the insurer.
### Response:
0
### Explanation:
In the facts and circumstances of the case, this Court took the view that the salary which flowed from the compassionate appointment offered by the tortfeasor, was liable to be deducted from the compensation which was payable by the same employer in his capacity as the owner of the offending vehicle. We find this decision as being of no assistance to the Appellant in the cases before us. In the present cases, the owner of the offending vehicle is not the employer who offered the compassionate appointment. As observed earlier, it is difficult to see how the owner can contend that the compensation which he is liable to pay for causing the death or disability should be reduced because of compassionate employment offered by another. In any case, it is difficult to determine how much the person offered compassionate appointment would earn over the period of employment which is not certain, and deduct that amount from the compensation17. This case seems to superficially support the case of the Appellant Insurance Company before us. However, on a deeper consideration, it does not. In Reliance General Insurance (supra), the family of the deceased employee became entitled to financial assistance of a sum equal to the pay and other allowances that were last drawn by the deceased for a certain period after his death, even without raising a specific claim. In other words the family became entitled to the pay & allowances that the deceased would have received if he would have not died, for a certain period of time. This financial scheme resulted in paying the family the same pay and allowances for a certain period and thus in effect clearly offsetting the loss of income on account of the death of the deceased. Thus, the amount of financial assistance had to be excluded from the loss of income, as to that extent there was no loss of income, and the compensation receivable by the family had to be reduced from the amount receivable under the Motor Vehicles Act18. In the present cases, the claimants were offered compassionate employment. The claimants were not offered any sum of money equal to the income of the deceased. In fact, they were not offered any sum of money at all. They were offered employment and the money they receive in the form of their salary, would be earned from such employment. The loss of income in such cases cannot be said to be set off because the claimants would be earning their living. Therefore, we are of the view that the amount earned by the claimants from compassionate appointments cannot be deducted from the quantum of compensation receivable by them under the Act19. In the cases before us, compensation is claimed from the owner of the offending vehicle who is different from the employer who has offered employment on compassionate grounds to the dependants of the deceased/injured. The source from which compensation on account of the accident is claimed and the source from which the compassionate employment is offered, are completely separate and there is no co-relation between these two sources. Since the tortfeasor has not offered the compassionate appointment, we are of the view that an amount which a claimant earns by his labour or by offering his services, whether by reason of compassionate appointment or otherwise is not liable to be deducted from the compensation which the claimant is entitled to receive from a tortfeasor under the Act. In such a situation, we are of the view that the financial benefit of the compassionate employment is not liable to be deducted at all from the compensation amount which is liable to be paid either by the owner/the driver of the offending vehicle or the insurer.
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Commissioner of Central Excise Vs. M/s. UNI Products (I) Ltd. & Others | also did not dispute the correctness of the said opinion. 7. The learned counsel for the respondents-company also relied on an Order-in-original No.69/89 dated 29/12/1989 passed by the Collector, Central Excise, New Delhi as also the findings recorded in the said order. The relevant portion of the said order is as below: "Chapter-Note (1) of Chapter 57 will not determine the fact that floor covering is floor covering of jute or polypropylene. The said Chapter Note describes and defines the floor covering. Section Note (4) and (14) has to be necessarily considered for this purpose. It is an admitted position that the top surface (exposed surface) does not have a pile or loop surface and hence Clause (b) of Section Note 14 does not apply. Hence in terms of Clause (a) to Section Note 14 whichever textile material predominates in weight that will determine the classification of the product. Since admittedly jute predominates in weight over other textile material, namely, polypropylene goods are classifiable only under heading 5702.20 and the classification already approved does not require any change." 8. In the ultimate finding in the said order the Adjudicating Authority came to the following conclusion: "....In the background of these facts, it would be seen that the partys contention based on Chapter Note(1) of Chapter 57 and Sec. Note (2) and (14) of Sec. XI that floor coverings are classifiable under 5702.20 is correct. The show cause notice says that polypropylene constitutes exposed surface and hence floor covering of the party should come under 5702.90 and not 5702.20, in spite of the fact that polypropylene is not a predominating textile but jute alone is predominating textile material. This point made in the show cause notice is without force and is not legally correct. As contended by the party Chapter Note (1) of Chapter 57 is relevant only for deciding whether the product is covered by the expression "carpet and other textile floor coverings". This Chapter Note cannot and does not decide the further question as to whether the product is floor covering of jute or polypropylene. It only says that if the exposed surface of the article textile material, the product is treated as carpet and other textile floor coverings. To say that because exposed surface is polypropylene the product would be treated as floor covering of polypropylene would be a total misreading of Chapter Note(1).On the other hand, as rightly pointed out by the party, the question as to whether the product is floor covering of jute or floor covering of polypropylene can be decided only in terms of Sec. 14(a) of Sec. XI read with Sec.(2) of Sec. XI. Stated briefly these section notes provide that products containing two or more textile materials would be regarded as consisting wholly of that one textile material which predominates by weight over any other single textile material. As already stated it is an indisputed position that the textile material jute predominates by weight over other textile material used in the floor covering namely polypropylene. Hence the floor covering cleared by the party can be classified only under 5702.20 and not under 5702.90. Thus on the merits of classification of floor covering, partys contention alone represents the correct interpretation and the classification already approved by the Assistant Collector is hereby affirmed and confirmed." 9. Strong reliance was placed by the respondents on the said finding by the adjudicating authority and the learned counsel for the Revenue could not point out anything to the contrary. 10. Learned counsel for the respondents submitted that despite the aforesaid finding, the present show-cause is wholly unnecessary.11. However, in the said show-cause proceedings the Commissioner ultimately dropped all penal proceedings and also the duty demand for the period beyond six months. 12. Ultimately, the matter rested when the appeal was filed before the Tribunal by the assessee and the tribunal in its order dated 30.9.2005 held as follows: "....It is seen from the manufacturing process as explained by the learned advocate that the carpet is manufactured in a continuous process and the said carpet is to be considered as of one identity rather than as having separate identity of having a exposed surface and under surface. The tacking of the fibers of polypropylene and jute to be further needle punched into Hessian cloth brings into existence one commodity that is carpet." 13. The tribunal after discussing the Chapter Notes, Sub-headings and also the Section Notes returned a finding that the classification should be done on the basis of the predominance test, that is to say, on the basis of textile materials which predominate by weight over other single textile material. 14. The tribunal noted that before the adjudicating authorities it has been claimed that the carpets manufactured by the appellants has jute contents of 75% to 85% and the tribunal noted that "the revenue has not disputed this".15. After opining as above, the tribunal went on to discuss the second question, namely, whether the Hessian cloth has to be separated for the purposes of the predominance test or not?16. After discussing the matter in detail, the tribunal came to a finding that while determining the predominance test, it would not be permissible to exclude base fabric (Hessian cloth).17. The tribunal came to the conclusion that the predominance test of the assessees products has to be done taking the product manufactured by it as a whole and not by separating the layers and then applying the predominance test.18. The tribunal also noted that the revenues reliance on a single dealers statement indicating that the assessees jute carpets are known in the market as "Synthetic carpet" is of no consequence especially when such statement is not substantiated by any evidence.19. It is well known that the tribunal being the last authority on fact, it is not proper for this Court, in exercise of its power under Section 35 L(b) of the Central Excise Act, 1944, to disturb such findings of the tribunal since such findings are based on evidence. | 0[ds]14. The tribunal noted that before the adjudicating authorities it has been claimed that the carpets manufactured by the appellants has jute contents of 75% to 85% and the tribunal noted that "the revenue has not disputed this".15. After opining as above, the tribunal went on to discuss the second question, namely, whether the Hessian cloth has to be separated for the purposes of the predominance test or not?16. After discussing the matter in detail, the tribunal came to a finding that while determining the predominance test, it would not be permissible to exclude base fabric (Hessian cloth).17. The tribunal came to the conclusion that the predominance test of the assessees products has to be done taking the product manufactured by it as a whole and not by separating the layers and then applying the predominance test.18. The tribunal also noted that the revenues reliance on a single dealers statement indicating that the assessees jute carpets are known in the market as "Synthetic carpet" is of no consequence especially when such statement is not substantiated by any evidence.19. It is well known that the tribunal being the last authority on fact, it is not proper for this Court, in exercise of its power under Section 35 L(b) of the Central Excise Act, 1944, to disturb such findings of the tribunal since such findings are based on evidence. | 0 | 1,441 | 262 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
also did not dispute the correctness of the said opinion. 7. The learned counsel for the respondents-company also relied on an Order-in-original No.69/89 dated 29/12/1989 passed by the Collector, Central Excise, New Delhi as also the findings recorded in the said order. The relevant portion of the said order is as below: "Chapter-Note (1) of Chapter 57 will not determine the fact that floor covering is floor covering of jute or polypropylene. The said Chapter Note describes and defines the floor covering. Section Note (4) and (14) has to be necessarily considered for this purpose. It is an admitted position that the top surface (exposed surface) does not have a pile or loop surface and hence Clause (b) of Section Note 14 does not apply. Hence in terms of Clause (a) to Section Note 14 whichever textile material predominates in weight that will determine the classification of the product. Since admittedly jute predominates in weight over other textile material, namely, polypropylene goods are classifiable only under heading 5702.20 and the classification already approved does not require any change." 8. In the ultimate finding in the said order the Adjudicating Authority came to the following conclusion: "....In the background of these facts, it would be seen that the partys contention based on Chapter Note(1) of Chapter 57 and Sec. Note (2) and (14) of Sec. XI that floor coverings are classifiable under 5702.20 is correct. The show cause notice says that polypropylene constitutes exposed surface and hence floor covering of the party should come under 5702.90 and not 5702.20, in spite of the fact that polypropylene is not a predominating textile but jute alone is predominating textile material. This point made in the show cause notice is without force and is not legally correct. As contended by the party Chapter Note (1) of Chapter 57 is relevant only for deciding whether the product is covered by the expression "carpet and other textile floor coverings". This Chapter Note cannot and does not decide the further question as to whether the product is floor covering of jute or polypropylene. It only says that if the exposed surface of the article textile material, the product is treated as carpet and other textile floor coverings. To say that because exposed surface is polypropylene the product would be treated as floor covering of polypropylene would be a total misreading of Chapter Note(1).On the other hand, as rightly pointed out by the party, the question as to whether the product is floor covering of jute or floor covering of polypropylene can be decided only in terms of Sec. 14(a) of Sec. XI read with Sec.(2) of Sec. XI. Stated briefly these section notes provide that products containing two or more textile materials would be regarded as consisting wholly of that one textile material which predominates by weight over any other single textile material. As already stated it is an indisputed position that the textile material jute predominates by weight over other textile material used in the floor covering namely polypropylene. Hence the floor covering cleared by the party can be classified only under 5702.20 and not under 5702.90. Thus on the merits of classification of floor covering, partys contention alone represents the correct interpretation and the classification already approved by the Assistant Collector is hereby affirmed and confirmed." 9. Strong reliance was placed by the respondents on the said finding by the adjudicating authority and the learned counsel for the Revenue could not point out anything to the contrary. 10. Learned counsel for the respondents submitted that despite the aforesaid finding, the present show-cause is wholly unnecessary.11. However, in the said show-cause proceedings the Commissioner ultimately dropped all penal proceedings and also the duty demand for the period beyond six months. 12. Ultimately, the matter rested when the appeal was filed before the Tribunal by the assessee and the tribunal in its order dated 30.9.2005 held as follows: "....It is seen from the manufacturing process as explained by the learned advocate that the carpet is manufactured in a continuous process and the said carpet is to be considered as of one identity rather than as having separate identity of having a exposed surface and under surface. The tacking of the fibers of polypropylene and jute to be further needle punched into Hessian cloth brings into existence one commodity that is carpet." 13. The tribunal after discussing the Chapter Notes, Sub-headings and also the Section Notes returned a finding that the classification should be done on the basis of the predominance test, that is to say, on the basis of textile materials which predominate by weight over other single textile material. 14. The tribunal noted that before the adjudicating authorities it has been claimed that the carpets manufactured by the appellants has jute contents of 75% to 85% and the tribunal noted that "the revenue has not disputed this".15. After opining as above, the tribunal went on to discuss the second question, namely, whether the Hessian cloth has to be separated for the purposes of the predominance test or not?16. After discussing the matter in detail, the tribunal came to a finding that while determining the predominance test, it would not be permissible to exclude base fabric (Hessian cloth).17. The tribunal came to the conclusion that the predominance test of the assessees products has to be done taking the product manufactured by it as a whole and not by separating the layers and then applying the predominance test.18. The tribunal also noted that the revenues reliance on a single dealers statement indicating that the assessees jute carpets are known in the market as "Synthetic carpet" is of no consequence especially when such statement is not substantiated by any evidence.19. It is well known that the tribunal being the last authority on fact, it is not proper for this Court, in exercise of its power under Section 35 L(b) of the Central Excise Act, 1944, to disturb such findings of the tribunal since such findings are based on evidence.
### Response:
0
### Explanation:
14. The tribunal noted that before the adjudicating authorities it has been claimed that the carpets manufactured by the appellants has jute contents of 75% to 85% and the tribunal noted that "the revenue has not disputed this".15. After opining as above, the tribunal went on to discuss the second question, namely, whether the Hessian cloth has to be separated for the purposes of the predominance test or not?16. After discussing the matter in detail, the tribunal came to a finding that while determining the predominance test, it would not be permissible to exclude base fabric (Hessian cloth).17. The tribunal came to the conclusion that the predominance test of the assessees products has to be done taking the product manufactured by it as a whole and not by separating the layers and then applying the predominance test.18. The tribunal also noted that the revenues reliance on a single dealers statement indicating that the assessees jute carpets are known in the market as "Synthetic carpet" is of no consequence especially when such statement is not substantiated by any evidence.19. It is well known that the tribunal being the last authority on fact, it is not proper for this Court, in exercise of its power under Section 35 L(b) of the Central Excise Act, 1944, to disturb such findings of the tribunal since such findings are based on evidence.
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R. Kasthuri and Ors Vs. M. Kasthuri and Ors | 1. Leave granted. The Appellants - Plaintiffs had instituted a civil suit (O.S. No. 222 of 1998) in the City Civil Court at Madras seeking, inter alia, following reliefs: A. Declaring that the first Plaintiff is the legally wedded wife of the deceased Gunaseelan S/o. V.M. Aalai. B. Declaring that the Plaintiffs 2 to 4 are the legitims to children of the first Plaintiff and late Gunaseelan S/o. Alai. C. Declaring that the first Plaintiff as wife, the Plaintiffs 2 to 4 as children and the 3rd Defendant as mother are the legal heirs of late Gunaseelan S/o. V.M. Aalai. 2. The suit was filed in a situation where the legal heirship obtained by the Plaintiffs - Appellants was sought to be challenged by the Defendants 1 and 2 who claimed to be the wife and son of late Gunaseelan whom the Plaintiff No. 1 also claimed to be her husband. 3. The suit was decreed by the learned trial Court which decree was affirmed in First Appeal. The High Court, in Second Appeal, took the view that having regard to the nature of the suit and the reliefs claimed the civil court had no jurisdiction to entertain the suit which lay within the domain of the Family Court constituted under the Family Courts Act, 1984. (hereinafter referred to as the Act) Accordingly, on the aforesaid basis the decree has been reversed. 4. The objects and reasons behind the enactment of the Act which is reproduced hereinbelow would suggest that the reason for constitution of family courts is for settlement of family disputes, if possible, by pre-litigation proceedings. If the dispute cannot be settled the same has to be adjudicated by adoption of a process which is different from what is adopted in ordinary civil proceedings. Statement of objects and reasons: Several associations of women, other organisations and individuals have urged, from time-to-time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the courts in adopting this conciliatory procedure and the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes. 5. Sections 13, 14 and 15 of the Act spell out a special procedure. The other provisions of the Act i.e. Section 4(4) would indicate that a major objective behind the enactment of the Act is to have a specialized body to preserve and save the institution of marriage. 6. In the present case, there is no family dispute between the Plaintiffs and the Defendants. The dispute arose after the demise of Gunaseelan to whom both the Plaintiff No. 1 and the Defendant No. 1 claim to be married. The other Plaintiffs and Defendant No. 2 are the children claimed to be born out of the respective marriages. 7. The above would indicate that the dispute between the parties is purely a civil dispute and has no bearing on any dispute within a family which needs to be resolved by a special procedure as provided under the Act. No issue with regard to the institution of marriage and the need to preserve the same also arises in the present case. That apart, the dispute between the parties can only be resolved on the basis of evidence to be tendered by the parties, admissibility of which has to be adjudged within the four corners of the provisions of the Indian Evidence Act, 1872. In such a proceeding it would be clearly wrong to deprive the parties of the benefit of the services of counsels. 8. Taking into account all that has been said above we are of the view that the High Court was not correct in holding the suit filed by the Plaintiffs - Appellants to be not maintainable in law. | 1[ds]4. The objects and reasons behind the enactment of the Act which is reproduced hereinbelow would suggest that the reason for constitution of family courts is for settlement of family disputes, if possible, by pre-litigation proceedings. If the dispute cannot be settled the same has to be adjudicated by adoption of a process which is different from what is adopted in ordinary civil proceedings5. Sections 13, 14 and 15 of the Act spell out a special procedure. The other provisions of the Act i.e. Section 4(4) would indicate that a major objective behind the enactment of the Act is to have a specialized body to preserve and save the institution of marriage6. In the present case, there is no family dispute between the Plaintiffs and the Defendants. The dispute arose after the demise of Gunaseelan to whom both the Plaintiff No. 1 and the Defendant No. 1 claim to be married. The other Plaintiffs and Defendant No. 2 are the children claimed to be born out of the respective marriages7. The above would indicate that the dispute between the parties is purely a civil dispute and has no bearing on any dispute within a family which needs to be resolved by a special procedure as provided under the Act. No issue with regard to the institution of marriage and the need to preserve the same also arises in the present case. That apart, the dispute between the parties can only be resolved on the basis of evidence to be tendered by the parties, admissibility of which has to be adjudged within the four corners of the provisions of the Indian Evidence Act, 1872. In such a proceeding it would be clearly wrong to deprive the parties of the benefit of the services of counsels8. Taking into account all that has been said above we are of the view that the High Court was not correct in holding the suit filed by the Plaintiffs - Appellants to be not maintainable in law. | 1 | 835 | 363 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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1. Leave granted. The Appellants - Plaintiffs had instituted a civil suit (O.S. No. 222 of 1998) in the City Civil Court at Madras seeking, inter alia, following reliefs: A. Declaring that the first Plaintiff is the legally wedded wife of the deceased Gunaseelan S/o. V.M. Aalai. B. Declaring that the Plaintiffs 2 to 4 are the legitims to children of the first Plaintiff and late Gunaseelan S/o. Alai. C. Declaring that the first Plaintiff as wife, the Plaintiffs 2 to 4 as children and the 3rd Defendant as mother are the legal heirs of late Gunaseelan S/o. V.M. Aalai. 2. The suit was filed in a situation where the legal heirship obtained by the Plaintiffs - Appellants was sought to be challenged by the Defendants 1 and 2 who claimed to be the wife and son of late Gunaseelan whom the Plaintiff No. 1 also claimed to be her husband. 3. The suit was decreed by the learned trial Court which decree was affirmed in First Appeal. The High Court, in Second Appeal, took the view that having regard to the nature of the suit and the reliefs claimed the civil court had no jurisdiction to entertain the suit which lay within the domain of the Family Court constituted under the Family Courts Act, 1984. (hereinafter referred to as the Act) Accordingly, on the aforesaid basis the decree has been reversed. 4. The objects and reasons behind the enactment of the Act which is reproduced hereinbelow would suggest that the reason for constitution of family courts is for settlement of family disputes, if possible, by pre-litigation proceedings. If the dispute cannot be settled the same has to be adjudicated by adoption of a process which is different from what is adopted in ordinary civil proceedings. Statement of objects and reasons: Several associations of women, other organisations and individuals have urged, from time-to-time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the courts in adopting this conciliatory procedure and the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes. 5. Sections 13, 14 and 15 of the Act spell out a special procedure. The other provisions of the Act i.e. Section 4(4) would indicate that a major objective behind the enactment of the Act is to have a specialized body to preserve and save the institution of marriage. 6. In the present case, there is no family dispute between the Plaintiffs and the Defendants. The dispute arose after the demise of Gunaseelan to whom both the Plaintiff No. 1 and the Defendant No. 1 claim to be married. The other Plaintiffs and Defendant No. 2 are the children claimed to be born out of the respective marriages. 7. The above would indicate that the dispute between the parties is purely a civil dispute and has no bearing on any dispute within a family which needs to be resolved by a special procedure as provided under the Act. No issue with regard to the institution of marriage and the need to preserve the same also arises in the present case. That apart, the dispute between the parties can only be resolved on the basis of evidence to be tendered by the parties, admissibility of which has to be adjudged within the four corners of the provisions of the Indian Evidence Act, 1872. In such a proceeding it would be clearly wrong to deprive the parties of the benefit of the services of counsels. 8. Taking into account all that has been said above we are of the view that the High Court was not correct in holding the suit filed by the Plaintiffs - Appellants to be not maintainable in law.
### Response:
1
### Explanation:
4. The objects and reasons behind the enactment of the Act which is reproduced hereinbelow would suggest that the reason for constitution of family courts is for settlement of family disputes, if possible, by pre-litigation proceedings. If the dispute cannot be settled the same has to be adjudicated by adoption of a process which is different from what is adopted in ordinary civil proceedings5. Sections 13, 14 and 15 of the Act spell out a special procedure. The other provisions of the Act i.e. Section 4(4) would indicate that a major objective behind the enactment of the Act is to have a specialized body to preserve and save the institution of marriage6. In the present case, there is no family dispute between the Plaintiffs and the Defendants. The dispute arose after the demise of Gunaseelan to whom both the Plaintiff No. 1 and the Defendant No. 1 claim to be married. The other Plaintiffs and Defendant No. 2 are the children claimed to be born out of the respective marriages7. The above would indicate that the dispute between the parties is purely a civil dispute and has no bearing on any dispute within a family which needs to be resolved by a special procedure as provided under the Act. No issue with regard to the institution of marriage and the need to preserve the same also arises in the present case. That apart, the dispute between the parties can only be resolved on the basis of evidence to be tendered by the parties, admissibility of which has to be adjudged within the four corners of the provisions of the Indian Evidence Act, 1872. In such a proceeding it would be clearly wrong to deprive the parties of the benefit of the services of counsels8. Taking into account all that has been said above we are of the view that the High Court was not correct in holding the suit filed by the Plaintiffs - Appellants to be not maintainable in law.
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New India Assurance Company Limited Vs. Ram Dayal | RANGANATH MISRA, J. 1. These are appeals by special leave challenging the reversing common decision of the Punjab and Haryana High Court holding the insurer liable for compensation under the Motor Vehicles Act of 1939. 2. The insurer repudiated its liability by maintaining that the policy had been taken after the accident and, therefore, it had no liability to meet the award of compensation against the owner. The Tribunal accepted this stand and rejected the claim against the insurer. In appeal, the High Court took the view, relying upon certain decisions, that the insurance policy obtained on the date of the accident became operative from the commencement of the date of insurance - i.e. from the previous midnight and since the accident took place on the date of the policy, the insurer became liable. 3. Apart from the judgment under appeal, we find that this view is supported by two judgments of the Madras High Court and an earlier decision of the Punjab and Haryana High Court. Two Division Benches of the Madras High Court have taken the view after discussing the law at length that the policy taken during any part of the day becomes operative from the commencement of that day. Besides these judgments a Division Bench decision of the Allahabad High Court in Jaddoo Singh v. Malti Devi 1983 AIR(All) 87) supports this view on principle. 4. There is evidence in this case that the vehicle was insured earlier up to August 31, 1984 and the same was available to be renewed but instead of obtaining renewal, a fresh insurance was taken from September 28, 1984, which is the date of the accident. We are inclined to agree with the view indicated in these decisions that when a policy is taken on a particular date, its effectiveness is from the commencement of the date and, therefore, the High Court, in our opinion, was right in holding that the insurer was liable in terms of the Act to meet the liability of the owner under the award. 5. As pointed out in Strouds Judicial Dictionary: "Date means day, so that where a cover note providing for temporary insurance of a motor car expires 15 days after date of commencement, it runs for the full 15 days after the day on which it was to commerce." * 6. Similarly, it has been stated in Stroud that "a bill of exchange, or note, is of the date expressed on its face, not the time when it is actually issued" 7. To the same effect is the decision in In re F.B. Warren ( 1938 (1) Ch 725 where it has been held that a judicial act will be referred to the first moment of the day on which it is done. A payment made by a bankrupt in the morning of a day is, therefore, not made, within section 45 of the Bankruptcy Act, 1914, before the date of a receiving order made later in the same day. 8. The ratio of these also supports the view we have taken. | 0[ds]e is evidence in this case that the vehicle was insured earlier up to August 31, 1984 and the same was available to be renewed but instead of obtaining renewal, a fresh insurance was taken from September 28, 1984, which is the date of the accident. We are inclined to agree with the view indicated in these decisions that when a policy is taken on a particular date, its effectiveness is from the commencement of the date and, therefore, the High Court, in our opinion, was right in holding that the insurer was liable in terms of the Act to meet the liability of the owner under the award | 0 | 573 | 123 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
RANGANATH MISRA, J. 1. These are appeals by special leave challenging the reversing common decision of the Punjab and Haryana High Court holding the insurer liable for compensation under the Motor Vehicles Act of 1939. 2. The insurer repudiated its liability by maintaining that the policy had been taken after the accident and, therefore, it had no liability to meet the award of compensation against the owner. The Tribunal accepted this stand and rejected the claim against the insurer. In appeal, the High Court took the view, relying upon certain decisions, that the insurance policy obtained on the date of the accident became operative from the commencement of the date of insurance - i.e. from the previous midnight and since the accident took place on the date of the policy, the insurer became liable. 3. Apart from the judgment under appeal, we find that this view is supported by two judgments of the Madras High Court and an earlier decision of the Punjab and Haryana High Court. Two Division Benches of the Madras High Court have taken the view after discussing the law at length that the policy taken during any part of the day becomes operative from the commencement of that day. Besides these judgments a Division Bench decision of the Allahabad High Court in Jaddoo Singh v. Malti Devi 1983 AIR(All) 87) supports this view on principle. 4. There is evidence in this case that the vehicle was insured earlier up to August 31, 1984 and the same was available to be renewed but instead of obtaining renewal, a fresh insurance was taken from September 28, 1984, which is the date of the accident. We are inclined to agree with the view indicated in these decisions that when a policy is taken on a particular date, its effectiveness is from the commencement of the date and, therefore, the High Court, in our opinion, was right in holding that the insurer was liable in terms of the Act to meet the liability of the owner under the award. 5. As pointed out in Strouds Judicial Dictionary: "Date means day, so that where a cover note providing for temporary insurance of a motor car expires 15 days after date of commencement, it runs for the full 15 days after the day on which it was to commerce." * 6. Similarly, it has been stated in Stroud that "a bill of exchange, or note, is of the date expressed on its face, not the time when it is actually issued" 7. To the same effect is the decision in In re F.B. Warren ( 1938 (1) Ch 725 where it has been held that a judicial act will be referred to the first moment of the day on which it is done. A payment made by a bankrupt in the morning of a day is, therefore, not made, within section 45 of the Bankruptcy Act, 1914, before the date of a receiving order made later in the same day. 8. The ratio of these also supports the view we have taken.
### Response:
0
### Explanation:
e is evidence in this case that the vehicle was insured earlier up to August 31, 1984 and the same was available to be renewed but instead of obtaining renewal, a fresh insurance was taken from September 28, 1984, which is the date of the accident. We are inclined to agree with the view indicated in these decisions that when a policy is taken on a particular date, its effectiveness is from the commencement of the date and, therefore, the High Court, in our opinion, was right in holding that the insurer was liable in terms of the Act to meet the liability of the owner under the award
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United India Assurance Co.Ltd Vs. A.N.Subbulakshmi | to the lorry MDR 3106 in the accident, allegedly resulting from the rash and negligent driving of the car MDO 7789. The claim of the lorrys owner was resisted by the legal representatives of the deceased Annamalai. Another claim petition, MACTOP no.625 of 1981 was filed by the heirs and legal representatives of the deceased Sigappi against the owner of the lorry and its insurer claiming damages for her death. A third claim petition, MACTOP No.627 of 1981 was filed by the wife and children of the deceased Annamalai, the owner of the car, against the owner of the lorry and its insurer claiming a sum of Rs.10,04,600/- as compensation for his death.5. The Tribunal by order dated 22 January, 1986 found and held that the accident was caused entirely due to the rash and negligent driving of the car driver, Annamalai. There was no mistake, rashness or negligence on the part of the driver of the lorry. He accordingly rejected the claims instituted by the heirs of the deceased Annamalai and the heirs and legal representatives of the deceased Siggapi. Further, in accordance with its finding, the Tribunal allowed the claim of the owner of the lorry but instead of Rs.58, 300/- as claimed in the petition, awarded the smaller amount of Rs.14,100/- with 7% interest to be recovered from the assets left by the deceased Annamalai in the hands of his heirs, impleaded as respondents in the claim petition.6. Against the order passed by the Tribunal three separate appeals came to be filed in the Madras High Court. These appeals were disposed of by a common judgment and order dated 12 December, 2003. The High Court reversed the finding of the Tribunal as to the cause of the accident and on a detailed examination of all the evidences on record came to hold and find as follows: "As seen from the file, B.7, B.8 as well as B.1 and A.1, on a consideration of the oral evidence, this court holds that the accident has not been caused exclusively by the rash and negligent driving of the ambassador car, but the accident has been caused by the rash and negligent driving of both the vehicles, namely, ambassador car and the lorry driver. This court holds that the contributory negligence on the part of the lorry driver could be fixed at 50% and that of the ambassador car at 50% as seen from the place of impact, damages caused to the vehicles as well as Exs.B.7 and B.8. The points 1 and 2 are answered above." 7. The High Court then proceeded to determine the amounts of compensation payable for the death of Siggapi and Annamalai and directed the owner and insurer of the lorry to pay half the amount of compensation fixed by it in each case to the respective claimants (since the responsibility for the accident lay equally on the two sides). In case of Siggapi the amount payable to the claimants by the owner and insurer of the lorry is Rs.25,000/- with 6% interest from the date of the claim petition and in case of Annamalai the amount payable to the claimants by the owner and the insurer of the lorry worked out to Rs.3,25,000/- with 6% interest from the date of claim petition to the claimants. Finally, in paragraph 36 of the judgment, the High Court made the following direction: "We make it clear in both claims that the insurer of the lorry shall pay the compensation and thereafter it is for the insurer to institute appropriate action against the owner of the lorry thereafter for amount if any paid over and above the liability covered by the insurance policy, the two appeals are to be allowed in part." 8. It is this direction making it the liability of the insurer to pay the amounts of compensation to the two claimants that causes grievance to the appellant and these appeals are preferred on the limited question about the validity of the High Courts direction. 9. Mr. P. K. Seth, learned counsel appearing on behalf of the appellant, submitted that the accident took place on 14 May, 1981, when the Motor Vehicles Act, 1939 was in operation and the liability of the insurer was governed by Section 95(2)(a) of the Act. Learned counsel submitted that under Section 95(2)(a), the insurers liability could not exceed the sum of Rs.50, 000/- and the direction of the High Court asking the appellant to pay the entire amounts of Rs.25, 000/- and Rs.3, 25,000/- to the claimants and then to recover it from the insurer was without any sanction of law. In support of the submission he relied upon a Constitution Bench decision in New Indian Assurance Co. Ltd. vs. C .M. Jaya & Ors., (2002) 2 SCC 78. In that case the same question came up for consideration before the Constitution Bench of this Court and it was held that under Section 95(2)(a) of the Act even in case of a comprehensively insured vehicle the liability of the insurer was limited to Rs.50, 000/- (raised to Rs.1,50,000=00 with effect from 1 October 1982). An unlimited or a higher liability than the statutory liability of the insurer would arise only in case there is a separate contract and payment of additional premium by the owner of the vehicle. In paragraph 17 of the decision it was held as follows: "In the circumstances, we hold that the liability of the appellant-Insurance Company is limited to Rs.50, 000/-, as held by the Tribunal. In the view we have taken, it is unnecessary to go into the question relating to either maintainability of cross-objections before the High Court against the appellant alone or as to the enhancement of compensation when the owner and driver have not filed appeal against the impugned judgment." 10. The Constitution Bench decision applies to the facts of this case with full force. We accordingly hold and find that the impugned direction of the High Court is unsustainable in law. | 1[ds]10. The Constitution Bench decision applies to the facts of this case with full force. We accordingly hold and find that the impugned direction of the High Court is unsustainable in law. | 1 | 1,408 | 39 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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to the lorry MDR 3106 in the accident, allegedly resulting from the rash and negligent driving of the car MDO 7789. The claim of the lorrys owner was resisted by the legal representatives of the deceased Annamalai. Another claim petition, MACTOP no.625 of 1981 was filed by the heirs and legal representatives of the deceased Sigappi against the owner of the lorry and its insurer claiming damages for her death. A third claim petition, MACTOP No.627 of 1981 was filed by the wife and children of the deceased Annamalai, the owner of the car, against the owner of the lorry and its insurer claiming a sum of Rs.10,04,600/- as compensation for his death.5. The Tribunal by order dated 22 January, 1986 found and held that the accident was caused entirely due to the rash and negligent driving of the car driver, Annamalai. There was no mistake, rashness or negligence on the part of the driver of the lorry. He accordingly rejected the claims instituted by the heirs of the deceased Annamalai and the heirs and legal representatives of the deceased Siggapi. Further, in accordance with its finding, the Tribunal allowed the claim of the owner of the lorry but instead of Rs.58, 300/- as claimed in the petition, awarded the smaller amount of Rs.14,100/- with 7% interest to be recovered from the assets left by the deceased Annamalai in the hands of his heirs, impleaded as respondents in the claim petition.6. Against the order passed by the Tribunal three separate appeals came to be filed in the Madras High Court. These appeals were disposed of by a common judgment and order dated 12 December, 2003. The High Court reversed the finding of the Tribunal as to the cause of the accident and on a detailed examination of all the evidences on record came to hold and find as follows: "As seen from the file, B.7, B.8 as well as B.1 and A.1, on a consideration of the oral evidence, this court holds that the accident has not been caused exclusively by the rash and negligent driving of the ambassador car, but the accident has been caused by the rash and negligent driving of both the vehicles, namely, ambassador car and the lorry driver. This court holds that the contributory negligence on the part of the lorry driver could be fixed at 50% and that of the ambassador car at 50% as seen from the place of impact, damages caused to the vehicles as well as Exs.B.7 and B.8. The points 1 and 2 are answered above." 7. The High Court then proceeded to determine the amounts of compensation payable for the death of Siggapi and Annamalai and directed the owner and insurer of the lorry to pay half the amount of compensation fixed by it in each case to the respective claimants (since the responsibility for the accident lay equally on the two sides). In case of Siggapi the amount payable to the claimants by the owner and insurer of the lorry is Rs.25,000/- with 6% interest from the date of the claim petition and in case of Annamalai the amount payable to the claimants by the owner and the insurer of the lorry worked out to Rs.3,25,000/- with 6% interest from the date of claim petition to the claimants. Finally, in paragraph 36 of the judgment, the High Court made the following direction: "We make it clear in both claims that the insurer of the lorry shall pay the compensation and thereafter it is for the insurer to institute appropriate action against the owner of the lorry thereafter for amount if any paid over and above the liability covered by the insurance policy, the two appeals are to be allowed in part." 8. It is this direction making it the liability of the insurer to pay the amounts of compensation to the two claimants that causes grievance to the appellant and these appeals are preferred on the limited question about the validity of the High Courts direction. 9. Mr. P. K. Seth, learned counsel appearing on behalf of the appellant, submitted that the accident took place on 14 May, 1981, when the Motor Vehicles Act, 1939 was in operation and the liability of the insurer was governed by Section 95(2)(a) of the Act. Learned counsel submitted that under Section 95(2)(a), the insurers liability could not exceed the sum of Rs.50, 000/- and the direction of the High Court asking the appellant to pay the entire amounts of Rs.25, 000/- and Rs.3, 25,000/- to the claimants and then to recover it from the insurer was without any sanction of law. In support of the submission he relied upon a Constitution Bench decision in New Indian Assurance Co. Ltd. vs. C .M. Jaya & Ors., (2002) 2 SCC 78. In that case the same question came up for consideration before the Constitution Bench of this Court and it was held that under Section 95(2)(a) of the Act even in case of a comprehensively insured vehicle the liability of the insurer was limited to Rs.50, 000/- (raised to Rs.1,50,000=00 with effect from 1 October 1982). An unlimited or a higher liability than the statutory liability of the insurer would arise only in case there is a separate contract and payment of additional premium by the owner of the vehicle. In paragraph 17 of the decision it was held as follows: "In the circumstances, we hold that the liability of the appellant-Insurance Company is limited to Rs.50, 000/-, as held by the Tribunal. In the view we have taken, it is unnecessary to go into the question relating to either maintainability of cross-objections before the High Court against the appellant alone or as to the enhancement of compensation when the owner and driver have not filed appeal against the impugned judgment." 10. The Constitution Bench decision applies to the facts of this case with full force. We accordingly hold and find that the impugned direction of the High Court is unsustainable in law.
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1
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10. The Constitution Bench decision applies to the facts of this case with full force. We accordingly hold and find that the impugned direction of the High Court is unsustainable in law.
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M/S MODEL ECONOMIC TEWNSHIP LTD Vs. LAND ACQUISITION COLLECTOR | Urban Estate, Haryana for hearing with regard to land acquisition pertaining to Village Sihi Hadbast no. 108, Tehsil Manesar, District Gurgaon/Rewari. This land acquisition arose out of a notification under sec. 4 dated 07.08.2013 and notification under sec. 6 dated 05.08.2014. This hearing was scheduled to be held on 03.08.2016. It was during this hearing on 03.08.2016 that the representative of the Petitioner, Shri Satyawan, came to know about the decision of the Hon?ble High Court dated 24.05.2016 in Moti Sagar & Ors. v. State of Haryana and Anr. (RFA no. 1580 of 2012) filed by the other landowners. It is pertinent to note that the petitioner?s application under section 28A and the hearing held on 03.08.2016 pertaining to Nemita Commercial Private Limited was heard in the same office of the Land Acquisition Collector. Thereafter, the Petitioner contacted Shri Shailendra Jain, Sr. Adv. who had also argued on behalf of the writ petitioners in Moti Sagar and engaged him to argue the writ petition bearing C.W.P. No. 23688 of 2016 (O&M) challenging the order dated 06.03.2014 whereby the application under section 28A filed by the petitioner was disposed off. English translation and true copy of the notice dated 04.07.2016 are being annexed herewith and marked as ANNEXURE ‘B? (pages 11 to 13). In support, the affidavit of the aforesaid representative of the Petitioner, Shri Satyawan is also filed along with the present affidavit. (d)When was the writ petition filed in the High Court? Response: The petitioner had filed its writ petition on 15.11.2016.? 7. Relying on the decision of this Court in Bharatsing s/o. Gulabsingh Jakhad and Ors. Vs. State of Maharashtra and Ors. (2018) 11 SCC 92 it is contended by the petitioner that the Collector ought to have kept the application under Section 28A of the Act pending till the appeals were decided and that for the failure of the Collector on that count, the petitioner ought not to be put to prejudice. It is, therefore, submitted that the order dated 06.03.2014 be set aside; the entire exercise under Section 28A be undertaken de novo keeping in mind the compensation as awarded by the High Court (as scaled by this Court later). 8. In Bharatsing 1 the award was passed on 04.06.1977. The Reference Court allowed enhancement vide decision dated 01.10.1992, whereafter application under Section 28A of the Act was preferred on 31.12.1992. Said application was decided on 25.10.2000 that is almost eight years after the application was preferred. Around this time, cross appeals preferred by the landholders as well as the State against the decision of the Reference Court were pending in the High Court. These appeals were disposed of by the High Court on 23.03.2009 granting compensation at an enhanced rate of Rs.18000 per acre. Soon thereafter, second application under Section 28A of the Act was preferred on 27.05.2009 seeking benefit under the judgment of the High Court dated 23.03.2009. This second application came to be dismissed by the High Court. This Court affirmed the view that second application under Section 28A could not be preferred but found that the disposal of the first application under Section 28A on 25.10.2000 was not in conformity with the law laid down by this Court in Babua Ram vs. State of U.P . (1995) 2 SCC 689 and other M/S. Model Economic Township Ltd. Vs. Land Acquisition Collector 9 subsequent cases. In the facts of the case, this Court, therefore directed that the original application preferred on 31.12.1992 be considered afresh.9. During the pendency of the present matter, this Court had summoned the original record to apprise itself as to the circumstances in which the application under Section 28A of the Act was taken up for consideration by the Collector. The record indicates that the Collector was given to understand that no appeal or further challenge was pending consideration before any superior court and that the matter had attained finality.10. It is neither the case of the petitioner nor it is even remotely contended that despite being aware of such pending challenge, the Collector had proceeded with the matter and decided the application under Section 28A. It is also not the case that the petitioner had made the Collector aware or brought it to the notice of the office about pendency of such matter/further challenge. The petitioner approached the High Court on 15.11.2016 only after the compensation was enhanced by the High Court to the level of Rs.2,80,00,000/- per acre in respect of comparable lands vide judgment dated 24.5.2016. Again, there is nothing in the petition as to why the petitioner took so much time to realise that the course undertaken by the Collector was not in keeping with the principles laid down by this Court. Looking to the profile of the petitioner which is a limited company, it can certainly be said to be having resources to equip itself with adequate knowledge on the front. The explanation offered by the petitioner in the affidavit pursuant to the direction issued on 06.02.2019, in our view, is not satisfactory. The explanation that the petitioner became aware for the first time on 03.08.2016 does not appear to be correct and reliable. Again, if Shri Satyawan who swore the affidavit as whole- time Director of the petitioner-company, was aware on 03.08.2016 that the compensation stood enhanced by the High Court vide judgment and order dated 24.05.2016, there is no reason why the filing of the writ petition was delayed till 15.11.2016. For an entity who held more than 10% of the land under acquisition the way it conducted itself does not inspire any confidence. The idea under Section 28A is certainly to extend benefit of equal compensation to landholders who, for some reasons had not preferred appropriate applications for Reference in time but for a company having profile such as the petitioner, inaction on the front followed by delay in filing petition in the High Court, in our view, disentitles the petitioner from claiming any relief under Article 226 of the Constitution. | 0[ds]8. In Bharatsing 1 the award was passed on 04.06.1977. The Reference Court allowed enhancement vide decision dated 01.10.1992, whereafter application under Section 28A of the Act was preferred on 31.12.1992. Said application was decided on 25.10.2000 that is almost eight years after the application was preferred. Around this time, cross appeals preferred by the landholders as well as the State against the decision of the Reference Court were pending in the High Court. These appeals were disposed of by the High Court on 23.03.2009 granting compensation at an enhanced rate of Rs.18000 per acre. Soon thereafter, second application under Section 28A of the Act was preferred on 27.05.2009 seeking benefit under the judgment of the High Court dated 23.03.2009. This second application came to be dismissed by the High Court. This Court affirmed the view that second application under Section 28A could not be preferred but found that the disposal of the first application under Section 28A on 25.10.2000 was not in conformity with the law laid down by this Court in Babua Ram vs. State of U.P . (1995) 2 SCC 689 and other M/S. Model Economic Township Ltd. Vs. Land Acquisition Collector 9 subsequent cases. In the facts of the case, this Court, therefore directed that the original application preferred on 31.12.1992 be considered afresh.9. During the pendency of the present matter, this Court had summoned the original record to apprise itself as to the circumstances in which the application under Section 28A of the Act was taken up for consideration by the Collector. The record indicates that the Collector was given to understand that no appeal or further challenge was pending consideration before any superior court and that the matter had attained finality.10. It is neither the case of the petitioner nor it is even remotely contended that despite being aware of such pending challenge, the Collector had proceeded with the matter and decided the application under Section 28A. It is also not the case that the petitioner had made the Collector aware or brought it to the notice of the office about pendency of such matter/further challenge. The petitioner approached the High Court on 15.11.2016 only after the compensation was enhanced by the High Court to the level of Rs.2,80,00,000/- per acre in respect of comparable lands vide judgment dated 24.5.2016. Again, there is nothing in the petition as to why the petitioner took so much time to realise that the course undertaken by the Collector was not in keeping with the principles laid down by this Court. Looking to the profile of the petitioner which is a limited company, it can certainly be said to be having resources to equip itself with adequate knowledge on the front. The explanation offered by the petitioner in the affidavit pursuant to the direction issued on 06.02.2019, in our view, is not satisfactory. The explanation that the petitioner became aware for the first time on 03.08.2016 does not appear to be correct and reliable. Again, if Shri Satyawan who swore the affidavit as whole- time Director of the petitioner-company, was aware on 03.08.2016 that the compensation stood enhanced by the High Court vide judgment and order dated 24.05.2016, there is no reason why the filing of the writ petition was delayed till 15.11.2016. For an entity who held more than 10% of the land under acquisition the way it conducted itself does not inspire any confidence. The idea under Section 28A is certainly to extend benefit of equal compensation to landholders who, for some reasons had not preferred appropriate applications for Reference in time but for a company having profile such as the petitioner, inaction on the front followed by delay in filing petition in the High Court, in our view, disentitles the petitioner from claiming any relief under Article 226 of the Constitution. | 0 | 2,413 | 685 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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Urban Estate, Haryana for hearing with regard to land acquisition pertaining to Village Sihi Hadbast no. 108, Tehsil Manesar, District Gurgaon/Rewari. This land acquisition arose out of a notification under sec. 4 dated 07.08.2013 and notification under sec. 6 dated 05.08.2014. This hearing was scheduled to be held on 03.08.2016. It was during this hearing on 03.08.2016 that the representative of the Petitioner, Shri Satyawan, came to know about the decision of the Hon?ble High Court dated 24.05.2016 in Moti Sagar & Ors. v. State of Haryana and Anr. (RFA no. 1580 of 2012) filed by the other landowners. It is pertinent to note that the petitioner?s application under section 28A and the hearing held on 03.08.2016 pertaining to Nemita Commercial Private Limited was heard in the same office of the Land Acquisition Collector. Thereafter, the Petitioner contacted Shri Shailendra Jain, Sr. Adv. who had also argued on behalf of the writ petitioners in Moti Sagar and engaged him to argue the writ petition bearing C.W.P. No. 23688 of 2016 (O&M) challenging the order dated 06.03.2014 whereby the application under section 28A filed by the petitioner was disposed off. English translation and true copy of the notice dated 04.07.2016 are being annexed herewith and marked as ANNEXURE ‘B? (pages 11 to 13). In support, the affidavit of the aforesaid representative of the Petitioner, Shri Satyawan is also filed along with the present affidavit. (d)When was the writ petition filed in the High Court? Response: The petitioner had filed its writ petition on 15.11.2016.? 7. Relying on the decision of this Court in Bharatsing s/o. Gulabsingh Jakhad and Ors. Vs. State of Maharashtra and Ors. (2018) 11 SCC 92 it is contended by the petitioner that the Collector ought to have kept the application under Section 28A of the Act pending till the appeals were decided and that for the failure of the Collector on that count, the petitioner ought not to be put to prejudice. It is, therefore, submitted that the order dated 06.03.2014 be set aside; the entire exercise under Section 28A be undertaken de novo keeping in mind the compensation as awarded by the High Court (as scaled by this Court later). 8. In Bharatsing 1 the award was passed on 04.06.1977. The Reference Court allowed enhancement vide decision dated 01.10.1992, whereafter application under Section 28A of the Act was preferred on 31.12.1992. Said application was decided on 25.10.2000 that is almost eight years after the application was preferred. Around this time, cross appeals preferred by the landholders as well as the State against the decision of the Reference Court were pending in the High Court. These appeals were disposed of by the High Court on 23.03.2009 granting compensation at an enhanced rate of Rs.18000 per acre. Soon thereafter, second application under Section 28A of the Act was preferred on 27.05.2009 seeking benefit under the judgment of the High Court dated 23.03.2009. This second application came to be dismissed by the High Court. This Court affirmed the view that second application under Section 28A could not be preferred but found that the disposal of the first application under Section 28A on 25.10.2000 was not in conformity with the law laid down by this Court in Babua Ram vs. State of U.P . (1995) 2 SCC 689 and other M/S. Model Economic Township Ltd. Vs. Land Acquisition Collector 9 subsequent cases. In the facts of the case, this Court, therefore directed that the original application preferred on 31.12.1992 be considered afresh.9. During the pendency of the present matter, this Court had summoned the original record to apprise itself as to the circumstances in which the application under Section 28A of the Act was taken up for consideration by the Collector. The record indicates that the Collector was given to understand that no appeal or further challenge was pending consideration before any superior court and that the matter had attained finality.10. It is neither the case of the petitioner nor it is even remotely contended that despite being aware of such pending challenge, the Collector had proceeded with the matter and decided the application under Section 28A. It is also not the case that the petitioner had made the Collector aware or brought it to the notice of the office about pendency of such matter/further challenge. The petitioner approached the High Court on 15.11.2016 only after the compensation was enhanced by the High Court to the level of Rs.2,80,00,000/- per acre in respect of comparable lands vide judgment dated 24.5.2016. Again, there is nothing in the petition as to why the petitioner took so much time to realise that the course undertaken by the Collector was not in keeping with the principles laid down by this Court. Looking to the profile of the petitioner which is a limited company, it can certainly be said to be having resources to equip itself with adequate knowledge on the front. The explanation offered by the petitioner in the affidavit pursuant to the direction issued on 06.02.2019, in our view, is not satisfactory. The explanation that the petitioner became aware for the first time on 03.08.2016 does not appear to be correct and reliable. Again, if Shri Satyawan who swore the affidavit as whole- time Director of the petitioner-company, was aware on 03.08.2016 that the compensation stood enhanced by the High Court vide judgment and order dated 24.05.2016, there is no reason why the filing of the writ petition was delayed till 15.11.2016. For an entity who held more than 10% of the land under acquisition the way it conducted itself does not inspire any confidence. The idea under Section 28A is certainly to extend benefit of equal compensation to landholders who, for some reasons had not preferred appropriate applications for Reference in time but for a company having profile such as the petitioner, inaction on the front followed by delay in filing petition in the High Court, in our view, disentitles the petitioner from claiming any relief under Article 226 of the Constitution.
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0
### Explanation:
8. In Bharatsing 1 the award was passed on 04.06.1977. The Reference Court allowed enhancement vide decision dated 01.10.1992, whereafter application under Section 28A of the Act was preferred on 31.12.1992. Said application was decided on 25.10.2000 that is almost eight years after the application was preferred. Around this time, cross appeals preferred by the landholders as well as the State against the decision of the Reference Court were pending in the High Court. These appeals were disposed of by the High Court on 23.03.2009 granting compensation at an enhanced rate of Rs.18000 per acre. Soon thereafter, second application under Section 28A of the Act was preferred on 27.05.2009 seeking benefit under the judgment of the High Court dated 23.03.2009. This second application came to be dismissed by the High Court. This Court affirmed the view that second application under Section 28A could not be preferred but found that the disposal of the first application under Section 28A on 25.10.2000 was not in conformity with the law laid down by this Court in Babua Ram vs. State of U.P . (1995) 2 SCC 689 and other M/S. Model Economic Township Ltd. Vs. Land Acquisition Collector 9 subsequent cases. In the facts of the case, this Court, therefore directed that the original application preferred on 31.12.1992 be considered afresh.9. During the pendency of the present matter, this Court had summoned the original record to apprise itself as to the circumstances in which the application under Section 28A of the Act was taken up for consideration by the Collector. The record indicates that the Collector was given to understand that no appeal or further challenge was pending consideration before any superior court and that the matter had attained finality.10. It is neither the case of the petitioner nor it is even remotely contended that despite being aware of such pending challenge, the Collector had proceeded with the matter and decided the application under Section 28A. It is also not the case that the petitioner had made the Collector aware or brought it to the notice of the office about pendency of such matter/further challenge. The petitioner approached the High Court on 15.11.2016 only after the compensation was enhanced by the High Court to the level of Rs.2,80,00,000/- per acre in respect of comparable lands vide judgment dated 24.5.2016. Again, there is nothing in the petition as to why the petitioner took so much time to realise that the course undertaken by the Collector was not in keeping with the principles laid down by this Court. Looking to the profile of the petitioner which is a limited company, it can certainly be said to be having resources to equip itself with adequate knowledge on the front. The explanation offered by the petitioner in the affidavit pursuant to the direction issued on 06.02.2019, in our view, is not satisfactory. The explanation that the petitioner became aware for the first time on 03.08.2016 does not appear to be correct and reliable. Again, if Shri Satyawan who swore the affidavit as whole- time Director of the petitioner-company, was aware on 03.08.2016 that the compensation stood enhanced by the High Court vide judgment and order dated 24.05.2016, there is no reason why the filing of the writ petition was delayed till 15.11.2016. For an entity who held more than 10% of the land under acquisition the way it conducted itself does not inspire any confidence. The idea under Section 28A is certainly to extend benefit of equal compensation to landholders who, for some reasons had not preferred appropriate applications for Reference in time but for a company having profile such as the petitioner, inaction on the front followed by delay in filing petition in the High Court, in our view, disentitles the petitioner from claiming any relief under Article 226 of the Constitution.
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One Square Investment Limited. (Formerly Known As Capri Uk Investments Limited) and 4 Other Vs. Remedial Resolutions Advisors Private Limited and 2 Others | the enactment of the Commercial Courts Act, 2015 and have been subsequently transferred as Commercial Suits to be heard by a Commercial Division of this Court and that Commercial Division or Commercial Court, as the case may be, may hold Case Management Hearings in respect of such transferred suits under the newly introduced Order XV-A of the CPC to prescribe new timelines or issue further directions including prescribing a new time period within which a written statement shall be filed, appears to be well founded. 36. I am thus persuaded to hold that the order of the Prothonotary and Senior Master fixing a time line for filing the written statement, especially after passing a direction to convert the suit to a commercial suit, was not competent. The order passed by the Prothonotary and Senior Master on 21st March 2017 transferring the suit to the list of undefended suits is therefore without legal sanction. Post transfer to a Commercial Division, by the force of the provisions of Section 15(3), the jurisdiction to prescribe the time limit for filing the written statement under section 15(4) ought to have been exercised by the Commercial Court and not by the Prothonotary and Senior Master. The necessary corollary of the aforesaid conclusion is that the very substratum of the ex-parte order passed by this Court, namely nonfiling of the written statement within the stipulated period, gets dismantled. Resultantly, the ex-parte decree becomes unsustainable. 37. This leads me to the consideration of the justifiability of the cause sought to be ascribed by the defendants for non-appearance on the day, the decree came to be passed. Mr.Tulzapurkar would submit that the reason of the defendants having missed to entrust the papers and proceedings of the instant suit to a new advocate, after those papers and proceedings were returned by M/s. Dhruve Liladhar and Company, does not satisfy the test of sufficient cause enunciated in the case of Parimal (Supra). It was submitted that there is no material on record on the aspect of the return of papers and proceedings by M/s. Dhruve Liladhar and Company and their subsequent nonappearance in the instant suit. This fact could have been adequately proved by the defendants by placing reliable material, urged Mr.Tulzapurkar. 38. Mr.Dwarkadas countered by inviting the attention of the Court to the fact after the matter came to be transferred to the list of undefended suits and listed before the Court in that category, the plaintiffs mentioned the matter on a couple of occasions and filed an affidavit of evidence. Neither the notice of mentioning of the matter was given to M/s. Dhruve Liladhar and Company nor the copy of the affidavit of evidence was served on the advocate for the defendants. Had notice been given or affidavit of evidence been served on the advocate for the defendants, the defendants would have got an opportunity to appear before the Court. 39. In the light of the aforesaid view, which this Court is persuaded to take, and the nature of instant proceedings, it is not strictly warranted to delve deep into the controversy on facts. However, it is pertinent to note that the averments in paragraph 15 in the affidavit in support of the notice of motion, which incorporate the aforesaid grievance of non-service of notice of mentioning and affidavit of evidence, have been merely denied in paragraph 9.16 of the affidavit in reply. 40. It is well neigh settled that the term sufficient cause, whenever used by the legislature to relieve a party of the consequence of default or inadvertence ordinarily receives a liberal construction. The Courts lean in favour of a liberal construction for the purpose of advancing the cause of substantive justice. The law favours determination of a lis, on merits, after providing an effective opportunity to the parties. This overriding objective warrants a liberal consideration of the cause assigned by a party where a delay or inaction is sought to be condoned. The term sufficient cause in a broader sense, implies that there was no negligence, malafide or deliberate inaction, on the part of the party seeking the relief. 41. Viewed through the aforesaid prism, in the facts of the case, the reason assigned by the defendants cannot be said to be wholly unreasonable or inconceivable. The defendants claim that they became aware of the ex-parte decree only upon being served with the execution letter dated 2nd July 2019 could not be shown to be incorrect. There is no material to indicate that at an earlier point of time the defendants had the opportunity to know about the passing of the ex-parte decree. Thus, I am persuaded to hold that the defendants have made out a case for condonation of delay in seeking setting aside of the ex-parte decree. The cause ascribed by the defendants, in the totality of the facts and circumstances of the case, appears justifiable. 42. Since this Court is of the considered view that the Prothonotary and Senior Master could not have prescribed the time limit for filing the written statement and passed an order transferring the suit to the list of undefended suits, upon failure of the defendants to file the written statement within the stipulated period, having noted that the suit was required to be dealt with as a commercial suit, governed by the provisions of Commercial Courts Act, 2015, the defendants deserve an opportunity to file written statement within the period to be prescribed by the Commercial Court under section 15(4) of the Commercial Courts Act, 2015. 43. The conspectus of the aforesaid consideration is that the notice of motion deserves to be allowed. 44. At this juncture, it is necessary to note that the learned Senior Counsel for the plaintiffs, in the alternative, urged that the defendants be put to terms in the nature of deposit of specified amount to protect the interest of the plaintiffs, in the event the ex-parte decree is set aside, in terms of the provisions contained in Rule 13 of Order IX. | 1[ds]21. The aforesaid judgment, after noticing the governing precedents holds in no uncertain terms that in the absence of a notice of motion having been taken out which Rule 90 mandates, no decree under the provisions of Order VIII of the Code can be passed. Such a decree is entirely a nullity and cannot be sustained22. It is imperative to note that the ex-parte decree, which was set aside in Madhu (Supra), was passed on 7th March 2014. This Court is, however, confronted with a situation which arises in the commercial suits governed by the provisions of the Commercial Courts Act23. On a plain reading of the aforesaid provisions it becomes evident that that sub-section (1) amends the provisions of the Code in the manner specified in the Schedule, in their application to any suit in respect of a commercial dispute. Sub-section (2) enjoins the Commercial Division and Commercial Court to follow the provisions of the Code of Civil Procedure, 1908, as amended by this Act, in the trial of a suit in respect of a commercial dispute. Sub-section (3) is of material significance. It provides that where any provision of any Rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908, by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908, as amended by the said Act, the provisions of the Code of Civil Procedure as amended by the said Act shall prevail. Sub-section (3), thus, gives an overriding effect to the provisions of the Code, as amended by the said Act, in the trial of the commercial suits24. I am conscious of the fact that in the case of Iridium India Telecom Ltd. (Supra) the Supreme Court has, after elaborately considering the statutory scheme of the Code and the chronological perspective of the legislative enactments, held that the Legislature had made a distinction between the proceedings in other civil courts and the proceedings on the Original Side of the Chartered High Courts. This distinction was made for good historical reasons and it had continued unabated, through the consolidating Acts, and continued unaffected even through the last amendment of the Code in the year 2002. In the face of this body of evidence, it is difficult to accede to the contention of the appellant that the force of the non obstante clause is merely declaratory and not intended to operate as a declared exception to the general body of the Civil Procedure Code25. The Supreme Court, thus held that the time limit prescribed in Order VIII, Rule 1 for filing written statement, is not applicable to the suits on the Original Side of the Chartered High Courts, which continued to be governed by the High Court (Original Side) Rules26. The aforesaid pronouncement of the Supreme Court, in my considered view, is required to be understood in the backdrop of the fact that the Commercial Courts Act, 2015 introduces a substantially different procedure with the object of expeditious resolution of the commercial disputes. The Parliament was aware of Rule making power of High Court, including the Chartered High Courts, and the existence of the Rules which contained provisions which were at variance with the provisions of the Code as well as the Code as amended by the Commercial Courts Act, 2015. Thus, it was specifically provided that any provision of any Rule of the jurisdictional High Court which is in conflict with the provisions of the Code of Civil Procedure, 1908, as amended by the Commercial Courts Act, 2015 shall yield to the amended provisions of the Code28. The written statement in a commercial suit is required to be filed within a period of 120 days and in view of proviso to Rule 10 of Order VIII, the Court has no power to extend the time beyond the said period of 120 days. Thus, the provisions of Order VIII Rule 10 as amended by the Commercial Courts Act, 2015 were held to be mandatory29. On the aforesaid touchstone, reverting to the controversy at hand, if it is held that the provisions of the Original Side Rules still prevail over the provisions of the Code, as amended by the Commercial Courts Act, 2015, the object of expeditious disposal of the commercial causes suits, for which a special machinery and procedure is enshrined by the Commercial Courts Act would be defeated. Thus, in my view, the interdict contained in Rule 90 of the Original Side Rules may not apply with equal force to the suit in respect of a commercial dispute filed on the Commercial Division of the High Court.30. The second submission on behalf of the defendants regarding the competence of the Prothonotary and Senior Master to direct the filing of the written statement within the stipulated period, and transfer the suit to the list of the undefended suits, in the event of default, also revolves around the applicability of the provisions of the Commercial Courts Act, 2015. Section 15 of the Commercial Courts Act mandates transfer of pending suits and applications relating to a commercial dispute of a specified value pending in the High Court to the Commercial Division. The only exception carved out is in respect of the suit or application where the final judgment has been reserved by the Court prior to the constitution of the Commercial Division. Subsection (3) provides that where any suit or application shall stand transferred to the Commercial Division, the provisions of the said Act, shall apply to those procedures that were not complied at the time of transfer34. Evidently, the aforesaid order came to be passed after the Commercial Courts Act, 2015 came into force and a Commercial Division came to established in the High court. The Prothonotary and Senior Master noted in the order that the suit pertains to a commercial dispute of the specified value. A direction was given to convert the suit as a commercial suit and update CMIS Programme accordingly. Yet, the Prothonotary and Senior Master, proceeded to issue direction for filing written statement by the defendants on or before 21st March 2017 on the pain of transfer of the suit to the list of undefended suits in the event of default. In view of the provisions contained in sub-sections (3) and (4) of the Commercial Courts Act, once the suit stood statutorily transferred to the Commercial Division, after establishment thereof, all the provisions of the Act became applicable to those proceedings that were not complete at the time of transfer. The prescription of a fresh time-period for filing the written statement was to be made by the Court as envisaged by the Proviso to sub-section (4). The Prothonotary and Senior Master having passed direction for transfer of the suit to the Commercial Division, albeit in the nature of the conversion of the suit to a Commercial Suit, could not have legitimately prescribed a time limit for filing the written statement35. The reliance placed by the learned Senior Counsel on an order passed by a learned Single Judge of this Court in the case of Reliance General Insurance Company Limited Vs. Colonial Life Insurance Company (Trinidad) LimitedNMCD No.561/2018 in COMS/29/2013 Dt.24-05-2019 , wherein this Court held that the mandatory time line of 120 days for filing a written statement in a Commercial Suit is not applicable to suits which were filed prior to the enactment of the Commercial Courts Act, 2015 and have been subsequently transferred as Commercial Suits to be heard by a Commercial Division of this Court and that Commercial Division or Commercial Court, as the case may be, may hold Case Management Hearings in respect of such transferred suits under the newly introduced Order XV-A of the CPC to prescribe new timelines or issue further directions including prescribing a new time period within which a written statement shall be filed, appears to be well founded36. I am thus persuaded to hold that the order of the Prothonotary and Senior Master fixing a time line for filing the written statement, especially after passing a direction to convert the suit to a commercial suit, was not competent. The order passed by the Prothonotary and Senior Master on 21st March 2017 transferring the suit to the list of undefended suits is therefore without legal sanction. Post transfer to a Commercial Division, by the force of the provisions of Section 15(3), the jurisdiction to prescribe the time limit for filing the written statement under section 15(4) ought to have been exercised by the Commercial Court and not by the Prothonotary and Senior Master. The necessary corollary of the aforesaid conclusion is that the very substratum of the ex-parte order passed by this Court, namely nonfiling of the written statement within the stipulated period, gets dismantled. Resultantly, the ex-parte decree becomes unsustainable37. This leads me to the consideration of the justifiability of the cause sought to be ascribed by the defendants for non-appearance on the day, the decree came to be passedNeither the notice of mentioning of the matter was given to M/s. Dhruve Liladhar and Company nor the copy of the affidavit of evidence was served on the advocate for the defendants. Had notice been given or affidavit of evidence been served on the advocate for the defendants, the defendants would have got an opportunity to appear before the Court39. In the light of the aforesaid view, which this Court is persuaded to take, and the nature of instant proceedings, it is not strictly warranted to delve deep into the controversy on facts. However, it is pertinent to note that the averments in paragraph 15 in the affidavit in support of the notice of motion, which incorporate the aforesaid grievance of non-service of notice of mentioning and affidavit of evidence, have been merely denied in paragraph 9.16 of the affidavit in reply40. It is well neigh settled that the term sufficient cause, whenever used by the legislature to relieve a party of the consequence of default or inadvertence ordinarily receives a liberal construction. The Courts lean in favour of a liberal construction for the purpose of advancing the cause of substantive justice. The law favours determination of a lis, on merits, after providing an effective opportunity to the parties. This overriding objective warrants a liberal consideration of the cause assigned by a party where a delay or inaction is sought to be condoned. The term sufficient cause in a broader sense, implies that there was no negligence, malafide or deliberate inaction, on the part of the party seeking the relief41. Viewed through the aforesaid prism, in the facts of the case, the reason assigned by the defendants cannot be said to be wholly unreasonable or inconceivable. The defendants claim that they became aware of the ex-parte decree only upon being served with the execution letter dated 2nd July 2019 could not be shown to be incorrect. There is no material to indicate that at an earlier point of time the defendants had the opportunity to know about the passing of the ex-parte decree. Thus, I am persuaded to hold that the defendants have made out a case for condonation of delay in seeking setting aside of the ex-parte decree. The cause ascribed by the defendants, in the totality of the facts and circumstances of the case, appears justifiable42. Since this Court is of the considered view that the Prothonotary and Senior Master could not have prescribed the time limit for filing the written statement and passed an order transferring the suit to the list of undefended suits, upon failure of the defendants to file the written statement within the stipulated period, having noted that the suit was required to be dealt with as a commercial suit, governed by the provisions of Commercial Courts Act, 2015, the defendants deserve an opportunity to file written statement within the period to be prescribed by the Commercial Court under section 15(4) of the Commercial Courts Act, 201543. The conspectus of the aforesaid consideration is that the notice of motion deserves to be allowed. | 1 | 8,243 | 2,197 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the enactment of the Commercial Courts Act, 2015 and have been subsequently transferred as Commercial Suits to be heard by a Commercial Division of this Court and that Commercial Division or Commercial Court, as the case may be, may hold Case Management Hearings in respect of such transferred suits under the newly introduced Order XV-A of the CPC to prescribe new timelines or issue further directions including prescribing a new time period within which a written statement shall be filed, appears to be well founded. 36. I am thus persuaded to hold that the order of the Prothonotary and Senior Master fixing a time line for filing the written statement, especially after passing a direction to convert the suit to a commercial suit, was not competent. The order passed by the Prothonotary and Senior Master on 21st March 2017 transferring the suit to the list of undefended suits is therefore without legal sanction. Post transfer to a Commercial Division, by the force of the provisions of Section 15(3), the jurisdiction to prescribe the time limit for filing the written statement under section 15(4) ought to have been exercised by the Commercial Court and not by the Prothonotary and Senior Master. The necessary corollary of the aforesaid conclusion is that the very substratum of the ex-parte order passed by this Court, namely nonfiling of the written statement within the stipulated period, gets dismantled. Resultantly, the ex-parte decree becomes unsustainable. 37. This leads me to the consideration of the justifiability of the cause sought to be ascribed by the defendants for non-appearance on the day, the decree came to be passed. Mr.Tulzapurkar would submit that the reason of the defendants having missed to entrust the papers and proceedings of the instant suit to a new advocate, after those papers and proceedings were returned by M/s. Dhruve Liladhar and Company, does not satisfy the test of sufficient cause enunciated in the case of Parimal (Supra). It was submitted that there is no material on record on the aspect of the return of papers and proceedings by M/s. Dhruve Liladhar and Company and their subsequent nonappearance in the instant suit. This fact could have been adequately proved by the defendants by placing reliable material, urged Mr.Tulzapurkar. 38. Mr.Dwarkadas countered by inviting the attention of the Court to the fact after the matter came to be transferred to the list of undefended suits and listed before the Court in that category, the plaintiffs mentioned the matter on a couple of occasions and filed an affidavit of evidence. Neither the notice of mentioning of the matter was given to M/s. Dhruve Liladhar and Company nor the copy of the affidavit of evidence was served on the advocate for the defendants. Had notice been given or affidavit of evidence been served on the advocate for the defendants, the defendants would have got an opportunity to appear before the Court. 39. In the light of the aforesaid view, which this Court is persuaded to take, and the nature of instant proceedings, it is not strictly warranted to delve deep into the controversy on facts. However, it is pertinent to note that the averments in paragraph 15 in the affidavit in support of the notice of motion, which incorporate the aforesaid grievance of non-service of notice of mentioning and affidavit of evidence, have been merely denied in paragraph 9.16 of the affidavit in reply. 40. It is well neigh settled that the term sufficient cause, whenever used by the legislature to relieve a party of the consequence of default or inadvertence ordinarily receives a liberal construction. The Courts lean in favour of a liberal construction for the purpose of advancing the cause of substantive justice. The law favours determination of a lis, on merits, after providing an effective opportunity to the parties. This overriding objective warrants a liberal consideration of the cause assigned by a party where a delay or inaction is sought to be condoned. The term sufficient cause in a broader sense, implies that there was no negligence, malafide or deliberate inaction, on the part of the party seeking the relief. 41. Viewed through the aforesaid prism, in the facts of the case, the reason assigned by the defendants cannot be said to be wholly unreasonable or inconceivable. The defendants claim that they became aware of the ex-parte decree only upon being served with the execution letter dated 2nd July 2019 could not be shown to be incorrect. There is no material to indicate that at an earlier point of time the defendants had the opportunity to know about the passing of the ex-parte decree. Thus, I am persuaded to hold that the defendants have made out a case for condonation of delay in seeking setting aside of the ex-parte decree. The cause ascribed by the defendants, in the totality of the facts and circumstances of the case, appears justifiable. 42. Since this Court is of the considered view that the Prothonotary and Senior Master could not have prescribed the time limit for filing the written statement and passed an order transferring the suit to the list of undefended suits, upon failure of the defendants to file the written statement within the stipulated period, having noted that the suit was required to be dealt with as a commercial suit, governed by the provisions of Commercial Courts Act, 2015, the defendants deserve an opportunity to file written statement within the period to be prescribed by the Commercial Court under section 15(4) of the Commercial Courts Act, 2015. 43. The conspectus of the aforesaid consideration is that the notice of motion deserves to be allowed. 44. At this juncture, it is necessary to note that the learned Senior Counsel for the plaintiffs, in the alternative, urged that the defendants be put to terms in the nature of deposit of specified amount to protect the interest of the plaintiffs, in the event the ex-parte decree is set aside, in terms of the provisions contained in Rule 13 of Order IX.
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issue direction for filing written statement by the defendants on or before 21st March 2017 on the pain of transfer of the suit to the list of undefended suits in the event of default. In view of the provisions contained in sub-sections (3) and (4) of the Commercial Courts Act, once the suit stood statutorily transferred to the Commercial Division, after establishment thereof, all the provisions of the Act became applicable to those proceedings that were not complete at the time of transfer. The prescription of a fresh time-period for filing the written statement was to be made by the Court as envisaged by the Proviso to sub-section (4). The Prothonotary and Senior Master having passed direction for transfer of the suit to the Commercial Division, albeit in the nature of the conversion of the suit to a Commercial Suit, could not have legitimately prescribed a time limit for filing the written statement35. The reliance placed by the learned Senior Counsel on an order passed by a learned Single Judge of this Court in the case of Reliance General Insurance Company Limited Vs. Colonial Life Insurance Company (Trinidad) LimitedNMCD No.561/2018 in COMS/29/2013 Dt.24-05-2019 , wherein this Court held that the mandatory time line of 120 days for filing a written statement in a Commercial Suit is not applicable to suits which were filed prior to the enactment of the Commercial Courts Act, 2015 and have been subsequently transferred as Commercial Suits to be heard by a Commercial Division of this Court and that Commercial Division or Commercial Court, as the case may be, may hold Case Management Hearings in respect of such transferred suits under the newly introduced Order XV-A of the CPC to prescribe new timelines or issue further directions including prescribing a new time period within which a written statement shall be filed, appears to be well founded36. I am thus persuaded to hold that the order of the Prothonotary and Senior Master fixing a time line for filing the written statement, especially after passing a direction to convert the suit to a commercial suit, was not competent. The order passed by the Prothonotary and Senior Master on 21st March 2017 transferring the suit to the list of undefended suits is therefore without legal sanction. Post transfer to a Commercial Division, by the force of the provisions of Section 15(3), the jurisdiction to prescribe the time limit for filing the written statement under section 15(4) ought to have been exercised by the Commercial Court and not by the Prothonotary and Senior Master. The necessary corollary of the aforesaid conclusion is that the very substratum of the ex-parte order passed by this Court, namely nonfiling of the written statement within the stipulated period, gets dismantled. Resultantly, the ex-parte decree becomes unsustainable37. This leads me to the consideration of the justifiability of the cause sought to be ascribed by the defendants for non-appearance on the day, the decree came to be passedNeither the notice of mentioning of the matter was given to M/s. Dhruve Liladhar and Company nor the copy of the affidavit of evidence was served on the advocate for the defendants. Had notice been given or affidavit of evidence been served on the advocate for the defendants, the defendants would have got an opportunity to appear before the Court39. In the light of the aforesaid view, which this Court is persuaded to take, and the nature of instant proceedings, it is not strictly warranted to delve deep into the controversy on facts. However, it is pertinent to note that the averments in paragraph 15 in the affidavit in support of the notice of motion, which incorporate the aforesaid grievance of non-service of notice of mentioning and affidavit of evidence, have been merely denied in paragraph 9.16 of the affidavit in reply40. It is well neigh settled that the term sufficient cause, whenever used by the legislature to relieve a party of the consequence of default or inadvertence ordinarily receives a liberal construction. The Courts lean in favour of a liberal construction for the purpose of advancing the cause of substantive justice. The law favours determination of a lis, on merits, after providing an effective opportunity to the parties. This overriding objective warrants a liberal consideration of the cause assigned by a party where a delay or inaction is sought to be condoned. The term sufficient cause in a broader sense, implies that there was no negligence, malafide or deliberate inaction, on the part of the party seeking the relief41. Viewed through the aforesaid prism, in the facts of the case, the reason assigned by the defendants cannot be said to be wholly unreasonable or inconceivable. The defendants claim that they became aware of the ex-parte decree only upon being served with the execution letter dated 2nd July 2019 could not be shown to be incorrect. There is no material to indicate that at an earlier point of time the defendants had the opportunity to know about the passing of the ex-parte decree. Thus, I am persuaded to hold that the defendants have made out a case for condonation of delay in seeking setting aside of the ex-parte decree. The cause ascribed by the defendants, in the totality of the facts and circumstances of the case, appears justifiable42. Since this Court is of the considered view that the Prothonotary and Senior Master could not have prescribed the time limit for filing the written statement and passed an order transferring the suit to the list of undefended suits, upon failure of the defendants to file the written statement within the stipulated period, having noted that the suit was required to be dealt with as a commercial suit, governed by the provisions of Commercial Courts Act, 2015, the defendants deserve an opportunity to file written statement within the period to be prescribed by the Commercial Court under section 15(4) of the Commercial Courts Act, 201543. The conspectus of the aforesaid consideration is that the notice of motion deserves to be allowed.
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Hukumchand Gulabchand Jain Vs. Fulchand Lakhmichand Jain And Others | ceases." The limit of interest is different under other paragraphs for loans advanced in different circumstances. Paragraph 61 repeats what has been stated in paragraph 58 of Section II and adds a special rule to the effect:"on grain, on fruit, on wool or hair on beasts of burden, lent to be paid in the same kind of equal value, it must not be more than enough to make the debt quintuple." It is, therefore, clear, as stated earlier, that the rule of Damdupat applies in respect of interest due on amounts lent by a creditor to the borrower, the debtor. The question then is whether the funds in the hands of a trustee can be said to be such loans notionally advanced by the trustee to himself as an individual. If their character can be deemed to be such, there may be a case for applying the rule of Damdupat to the interest on such funds and that if it is not so, this rule of Damdupat will not apply to the interest ordered to be paid on such funds. 33. It has been urged for the appellant that the trustee is a debtor with respect to the trust money in his hands. Reference has been made to Halsburys Laws of England, III Edition, Vol. 38, page 1044 where it is stated at para 1801 :"A breach of trust is, in equity, regarded as giving rise to a simple contract debt. " In the foot-note is stated :"Strictly speaking, the relation of debtor and creditor does not subsist between a trustee and his cestui que trust [per Lindley, L. J. in Ex parte , Taylor; In re, Goldsmid, (1886) 18 QB 295]." Lewin on Trust, 15th Edition, states at 745 :"The debt constituted by a breach of trust is, even after it has been established by a decree, an equitable debt only, and until the Bankruptcy Act; 1869, would not have supported a petition in bankruptcy." It was said by the Earl of Halsbury, L.C., in Sharp v. Jackson, (1899) AC 419 at p. 426: It has been suggested that there was a proposition which could be maintained, as to which I confess I entertain grave doubts whether any decision goes to that extent, namely, that the relation between a cestui que trust and a trustee who has misappropriated the trust fund is not that of debtor and creditor. That it may be something more than that is true, but that it is that of debtor and creditor. I can entertain no doubt. As that question has been mooted and brought before your Lordships House as one question for decision here, I certainly have no hesitation in saying that in my opinion no such proposition can properly be maintained, and that although there are other and peculiar elements in the relation between a cestui que trust and a trustee, undoubtedly the relation of debtor and creditor can and does exist." No other Lord expressed an opinion on this point. 34. The correctness of this expression of the Earl of Haslbury has been doubted in Lake, in re Dyer, Ex parte , 1901-1 KB 710, by Rigby, L. J. who remarked at the hearing :"How is a trustee a debtor? Can he be sued at common law? I do not see how he can be a debtor for the money he is fraudulently dealing with is, at law, his own money. No doubt he can be called upon to repay the money, but that must be by a suit in equity, not at law. Notwithstanding the high authority of the statement that has been referrer to, I confess I do not understand it." 35. We are of opinion that though a trustee, who has custody of trust funds, has pecuniary liability to make good those funds if he has used them and may, on the basis of such liability, be said to be a debtor of the trust, yet he, as an individual, is not a borrower of the funds from the trust and cannot be said to have taken a loan from himself as a trustee in charge of the trust funds. His liability to pay interest, when ordered by the Court on equitable grounds, does not come within the provisions dealing with interest in Hindu Law, as mentioned in Colebrookes Digest. 36. There is no fixed rate of interest which a trustee be liable to pay as there is no contract between him as a trustee and as an individual to pay interest. He simply uses the money in his custody. It is only when the Court determines his liability to pay interest that interest is to be calculated on the principal amount due from him. It is not the case of a creditor letting interest accumulate and thus make the debtor pay interest much more than what he had borrowed as principal. 37. The principle of Damdupat was evolved both as an inducement to the debtor to pay the entire principal and interest thereon at one and the same time in order to save interest in excess of the principal and as a warning to the creditor to take effective steps for realising the debt from the borrower within reasonable time so that there be not such accumulation of interest as would be in excess of the principal amount due, as in that case he would have to forego the excess amount. There may be justification for the principle of Damdupat applying in the case of an ordinary creditor and a debtor, but there seems no justification for extending that principle to the case of a trustee who has to pay interest on the funds in his hand with respect to which on certain grounds he is held liable to pay interest. We, therefore, hold that the rule of Damdupat will not apply with respect to the interest adjudged payable by a trustee on his committing breach of trust with respect to the trust funds in his hands. | 1[ds]35. We are of opinion that though a trustee, who has custody of trust funds, has pecuniary liability to make good those funds if he has used them and may, on the basis of such liability, be said to be a debtor of the trust, yet he, as an individual, is not a borrower of the funds from the trust and cannot be said to have taken a loan from himself as a trustee in charge of the trust funds. His liability to pay interest, when ordered by the Court on equitable grounds, does not come within the provisions dealing with interest in Hindu Law, as mentioned in Colebrookes Digest36. There is no fixed rate of interest which a trustee be liable to pay as there is no contract between him as a trustee and as an individual to pay interest. He simply uses the money in his custody. It is only when the Court determines his liability to pay interest that interest is to be calculated on the principal amount due from him. It is not the case of a creditor letting interest accumulate and thus make the debtor pay interest much more than what he had borrowed as principal37. The principle of Damdupat was evolved both as an inducement to the debtor to pay the entire principal and interest thereon at one and the same time in order to save interest in excess of the principal and as a warning to the creditor to take effective steps for realising the debt from the borrower within reasonable time so that there be not such accumulation of interest as would be in excess of the principal amount due, as in that case he would have to forego the excess amount. There may be justification for the principle of Damdupat applying in the case of an ordinary creditor and a debtor, but there seems no justification for extending that principle to the case of a trustee who has to pay interest on the funds in his hand with respect to which on certain grounds he is held liable to pay interest. We, therefore, hold that the rule of Damdupat will not apply with respect to the interest adjudged payable by a trustee on his committing breach of trust with respect to the trust funds in his hands | 1 | 5,484 | 414 | ### Instruction:
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ceases." The limit of interest is different under other paragraphs for loans advanced in different circumstances. Paragraph 61 repeats what has been stated in paragraph 58 of Section II and adds a special rule to the effect:"on grain, on fruit, on wool or hair on beasts of burden, lent to be paid in the same kind of equal value, it must not be more than enough to make the debt quintuple." It is, therefore, clear, as stated earlier, that the rule of Damdupat applies in respect of interest due on amounts lent by a creditor to the borrower, the debtor. The question then is whether the funds in the hands of a trustee can be said to be such loans notionally advanced by the trustee to himself as an individual. If their character can be deemed to be such, there may be a case for applying the rule of Damdupat to the interest on such funds and that if it is not so, this rule of Damdupat will not apply to the interest ordered to be paid on such funds. 33. It has been urged for the appellant that the trustee is a debtor with respect to the trust money in his hands. Reference has been made to Halsburys Laws of England, III Edition, Vol. 38, page 1044 where it is stated at para 1801 :"A breach of trust is, in equity, regarded as giving rise to a simple contract debt. " In the foot-note is stated :"Strictly speaking, the relation of debtor and creditor does not subsist between a trustee and his cestui que trust [per Lindley, L. J. in Ex parte , Taylor; In re, Goldsmid, (1886) 18 QB 295]." Lewin on Trust, 15th Edition, states at 745 :"The debt constituted by a breach of trust is, even after it has been established by a decree, an equitable debt only, and until the Bankruptcy Act; 1869, would not have supported a petition in bankruptcy." It was said by the Earl of Halsbury, L.C., in Sharp v. Jackson, (1899) AC 419 at p. 426: It has been suggested that there was a proposition which could be maintained, as to which I confess I entertain grave doubts whether any decision goes to that extent, namely, that the relation between a cestui que trust and a trustee who has misappropriated the trust fund is not that of debtor and creditor. That it may be something more than that is true, but that it is that of debtor and creditor. I can entertain no doubt. As that question has been mooted and brought before your Lordships House as one question for decision here, I certainly have no hesitation in saying that in my opinion no such proposition can properly be maintained, and that although there are other and peculiar elements in the relation between a cestui que trust and a trustee, undoubtedly the relation of debtor and creditor can and does exist." No other Lord expressed an opinion on this point. 34. The correctness of this expression of the Earl of Haslbury has been doubted in Lake, in re Dyer, Ex parte , 1901-1 KB 710, by Rigby, L. J. who remarked at the hearing :"How is a trustee a debtor? Can he be sued at common law? I do not see how he can be a debtor for the money he is fraudulently dealing with is, at law, his own money. No doubt he can be called upon to repay the money, but that must be by a suit in equity, not at law. Notwithstanding the high authority of the statement that has been referrer to, I confess I do not understand it." 35. We are of opinion that though a trustee, who has custody of trust funds, has pecuniary liability to make good those funds if he has used them and may, on the basis of such liability, be said to be a debtor of the trust, yet he, as an individual, is not a borrower of the funds from the trust and cannot be said to have taken a loan from himself as a trustee in charge of the trust funds. His liability to pay interest, when ordered by the Court on equitable grounds, does not come within the provisions dealing with interest in Hindu Law, as mentioned in Colebrookes Digest. 36. There is no fixed rate of interest which a trustee be liable to pay as there is no contract between him as a trustee and as an individual to pay interest. He simply uses the money in his custody. It is only when the Court determines his liability to pay interest that interest is to be calculated on the principal amount due from him. It is not the case of a creditor letting interest accumulate and thus make the debtor pay interest much more than what he had borrowed as principal. 37. The principle of Damdupat was evolved both as an inducement to the debtor to pay the entire principal and interest thereon at one and the same time in order to save interest in excess of the principal and as a warning to the creditor to take effective steps for realising the debt from the borrower within reasonable time so that there be not such accumulation of interest as would be in excess of the principal amount due, as in that case he would have to forego the excess amount. There may be justification for the principle of Damdupat applying in the case of an ordinary creditor and a debtor, but there seems no justification for extending that principle to the case of a trustee who has to pay interest on the funds in his hand with respect to which on certain grounds he is held liable to pay interest. We, therefore, hold that the rule of Damdupat will not apply with respect to the interest adjudged payable by a trustee on his committing breach of trust with respect to the trust funds in his hands.
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35. We are of opinion that though a trustee, who has custody of trust funds, has pecuniary liability to make good those funds if he has used them and may, on the basis of such liability, be said to be a debtor of the trust, yet he, as an individual, is not a borrower of the funds from the trust and cannot be said to have taken a loan from himself as a trustee in charge of the trust funds. His liability to pay interest, when ordered by the Court on equitable grounds, does not come within the provisions dealing with interest in Hindu Law, as mentioned in Colebrookes Digest36. There is no fixed rate of interest which a trustee be liable to pay as there is no contract between him as a trustee and as an individual to pay interest. He simply uses the money in his custody. It is only when the Court determines his liability to pay interest that interest is to be calculated on the principal amount due from him. It is not the case of a creditor letting interest accumulate and thus make the debtor pay interest much more than what he had borrowed as principal37. The principle of Damdupat was evolved both as an inducement to the debtor to pay the entire principal and interest thereon at one and the same time in order to save interest in excess of the principal and as a warning to the creditor to take effective steps for realising the debt from the borrower within reasonable time so that there be not such accumulation of interest as would be in excess of the principal amount due, as in that case he would have to forego the excess amount. There may be justification for the principle of Damdupat applying in the case of an ordinary creditor and a debtor, but there seems no justification for extending that principle to the case of a trustee who has to pay interest on the funds in his hand with respect to which on certain grounds he is held liable to pay interest. We, therefore, hold that the rule of Damdupat will not apply with respect to the interest adjudged payable by a trustee on his committing breach of trust with respect to the trust funds in his hands
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Vikas Vs. State Of Rajasthan | In cross-examination, he stated that he saw Vikas crossing Mahalaxmi Temple and on that very route, there is house of Neetas father. 9. Further, PW12 Smt. Het Kunwar mother of the deceased has stated that after seven days of the marriage, her daughter Neeta was turned out of the house by Sohan Bai, Jyoti, Dalda, Vikas and Shripat saying that her parents have not given anything in dowry. After 1-1/2 months of stay of Neeta at her house, her husband Narendra, Bhagwati Lal and others took Neeta to her in-laws house. Thereafter, again after 1-1/2 months, her daughter was sent back to her house by making demand of dowry. Again after 15 days, Neeta was sent back to in-laws house. She talks about the payment of some amount to Vikas and others which we are not required to discuss here. It is also her say that on the day of incident, her daughter had gone at Smt. Kamla Bais house and from there Neeta was taken away by Vikas as narrated by Smt. Kamla Bai, PW3 and Rohit Doshi, PW4. In our view, there is no reason to discard this evidence. PW6 Mahesh Chander and PW7 Bhagwati Lal Doshi have also supported the prosecution version of torture of the deceased by the accused for non-fulfillment of dowry demand and that Neeta was turned out from her in-laws house. Apart from the aforesaid evidence. PW1 Pankaj, who turned hostile, also admitted in the cross-examination that on 28.6.1990 he saw accused Vikas taking his wife on his vicky. Further, as per the evidence of PW10 Sanjiv, when he went to the house of accused for delivering medicines to Neeta, Vikas who was sitting in the shop informed him that Neeta was not at his residence. 10. In our view, it is difficult to hold that High Court or trial Court committed any error in relying upon the aforesaid evidence for arriving at the conclusion that appellant had taken away Neeta from the house of Smt. Kamla Bai and thereafter on the next day morning when Sanjiv PW10, brother of Neeta went at the house of appellant, Neeta was not found and a false statement was made by Vikas that he had not taken away Neeta with him.11. For recovery of the dead-body also, it has come on record that it was recovered at the instance of Vikas on the basis of his disclosure statement while he was in custody, which is proved by the evidence of PW18 Narender Mohan Dy. S.P. Banswara, who has stated that accused Vikas led the public party to Gemmon bridge. He pointed out the place from where he pushed Neeta in the river and they found the dead-body at a distance of 1 k.m. At that time also, Vikas admitted that dead-body which was found from the river was that of Neeta. This discovery of the dead-body at the instance of accused is most relevant circumstances in the present case.12. Post-mortem examination report is proved by PW14 Dr. Vijay Kumar Mehta who was one Member of the Medical Board constituted for carrying out the post-mortem. According to him, the dead-body was fully decomposed; the tongue was hanging out of the mouth and eyes were protruding out; 7th cervical vertebra was broken; there was injury on the spinal cord and membrane thereon, where blood was clotted and the injury was sufficient to cause death in the ordinary course of nature. At the same time, she died due to drowning in water.13. Similarly, at the instance of accused ornaments were found in the safe of almirah from his room. PW8 Ravi Chaudhary has proved the recovery of a chain, three finger rings, one pair of ear tops from one almirah and one saree from another almirah from the sealed room of the house of accused Vikas. PW11 Vijay Kumar Vyas, Munsif and Judicial Magistrate, Banswara has deposed about the identification of the ornaments by PW3 Smt. Kamla Bai and PW10 Sanjiv. Further, the High Court has rightly relied upon the recovery of golden chain, which Neeta was wearing when she had gone to the house of Smt. Kamla Bai. The said article was recovered at the instance of accused from his house. This incriminating circumstance certainly points out the guilt of the accused otherwise the golden chain would not have been found from the almirah but it would have been on the dead body. From the aforesaid evidence, it is clear that there is no substance in the contention raised by the learned senior counsel for the appellant that there are material contradictions in the evidence of prosecution witnesses. In our view, except some minor variations the prosecution story is cogent and consistent with regard to demand of dowry and deceased Neeta accompanying her husband on the fateful day. Further, as there is evidence on record that accused came to the house of Smt. Kamla Bai on vicky and was seen by other witnesses riding the said motor bike, it was not necessary for the prosecution to prove that accused was owner of the vicky used by him. In the FIR lodged on 29th also, same story is stated. The submission of the learned senior counsel for the appellant that there was no reason for appellant to go to the house of PW3 for picking up deceased when she was driven out as stated by the prosecution witnesses requires no consideration because it is apparent from the evidence on record that Neetas parents were keen to maintain the matrimonial relations. Even though she was driven out on two to three occasions, she was again sent back by her parents to her matrimonial house. This keenness on the part of the parents to see that their daughter resides at her in-laws house peacefully has led to this incident. The High Court has also rightly relied upon the circumstance that accused made a false statement on the next day, when PW10 Sanjiv went to his house for giving medicines to Neeta. | 0[ds]10. In our view, it is difficult to hold that High Court or trial Court committed any error in relying upon the aforesaid evidence for arriving at the conclusion that appellant had taken away Neeta from the house of Smt. Kamla Bai and thereafter on the next day morning when Sanjiv PW10, brother of Neeta went at the house of appellant, Neeta was not found and a false statement was made by Vikas that he had not taken away Neeta with him.11. For recovery of thealso, it has come on record that it was recovered at the instance of Vikas on the basis of his disclosure statement while he was in custody, which is proved by the evidence of PW18 Narender Mohan Dy. S.P. Banswara, who has stated that accused Vikas led the public party to Gemmon bridge. He pointed out the place from where he pushed Neeta in the river and they found theat a distance of 1 k.m. At that time also, Vikas admitted thatwhich was found from the river was that of Neeta. This discovery of theat the instance of accused is most relevant circumstances in the present case.12.examination report is proved by PW14 Dr. Vijay Kumar Mehta who was one Member of the Medical Board constituted for carrying out theAccording to him, thewas fully decomposed; the tongue was hanging out of the mouth and eyes were protruding out; 7th cervical vertebra was broken; there was injury on the spinal cord and membrane thereon, where blood was clotted and the injury was sufficient to cause death in the ordinary course of nature. At the same time, she died due to drowning in water.13. Similarly, at the instance of accused ornaments were found in the safe of almirah from his room. PW8 Ravi Chaudhary has proved the recovery of a chain, three finger rings, one pair of ear tops from one almirah and one saree from another almirah from the sealed room of the house of accused Vikas. PW11 Vijay Kumar Vyas, Munsif and Judicial Magistrate, Banswara has deposed about the identification of the ornaments by PW3 Smt. Kamla Bai and PW10 Sanjiv. Further, the High Court has rightly relied upon the recovery of golden chain, which Neeta was wearing when she had gone to the house of Smt. Kamla Bai. The said article was recovered at the instance of accused from his house. This incriminating circumstance certainly points out the guilt of the accused otherwise the golden chain would not have been found from the almirah but it would have been on the dead body. From the aforesaid evidence, it is clear that there is no substance in the contention raised by the learned senior counsel for the appellant that there are material contradictions in the evidence of prosecution witnesses. In our view, except some minor variations the prosecution story is cogent and consistent with regard to demand of dowry and deceased Neeta accompanying her husband on the fateful day. Further, as there is evidence on record that accused came to the house of Smt. Kamla Bai on vicky and was seen by other witnesses riding the said motor bike, it was not necessary for the prosecution to prove that accused was owner of the vicky used by him. In the FIR lodged on 29th also, same story is stated. The submission of the learned senior counsel for the appellant that there was no reason for appellant to go to the house of PW3 for picking up deceased when she was driven out as stated by the prosecution witnesses requires no consideration because it is apparent from the evidence on record that Neetas parents were keen to maintain the matrimonial relations. Even though she was driven out on two to three occasions, she was again sent back by her parents to her matrimonial house. This keenness on the part of the parents to see that their daughter resides at herhouse peacefully has led to this incident. The High Court has also rightly relied upon the circumstance that accused made a false statement on the next day, when PW10 Sanjiv went to his house for giving medicines to Neeta. | 0 | 2,902 | 749 | ### Instruction:
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In cross-examination, he stated that he saw Vikas crossing Mahalaxmi Temple and on that very route, there is house of Neetas father. 9. Further, PW12 Smt. Het Kunwar mother of the deceased has stated that after seven days of the marriage, her daughter Neeta was turned out of the house by Sohan Bai, Jyoti, Dalda, Vikas and Shripat saying that her parents have not given anything in dowry. After 1-1/2 months of stay of Neeta at her house, her husband Narendra, Bhagwati Lal and others took Neeta to her in-laws house. Thereafter, again after 1-1/2 months, her daughter was sent back to her house by making demand of dowry. Again after 15 days, Neeta was sent back to in-laws house. She talks about the payment of some amount to Vikas and others which we are not required to discuss here. It is also her say that on the day of incident, her daughter had gone at Smt. Kamla Bais house and from there Neeta was taken away by Vikas as narrated by Smt. Kamla Bai, PW3 and Rohit Doshi, PW4. In our view, there is no reason to discard this evidence. PW6 Mahesh Chander and PW7 Bhagwati Lal Doshi have also supported the prosecution version of torture of the deceased by the accused for non-fulfillment of dowry demand and that Neeta was turned out from her in-laws house. Apart from the aforesaid evidence. PW1 Pankaj, who turned hostile, also admitted in the cross-examination that on 28.6.1990 he saw accused Vikas taking his wife on his vicky. Further, as per the evidence of PW10 Sanjiv, when he went to the house of accused for delivering medicines to Neeta, Vikas who was sitting in the shop informed him that Neeta was not at his residence. 10. In our view, it is difficult to hold that High Court or trial Court committed any error in relying upon the aforesaid evidence for arriving at the conclusion that appellant had taken away Neeta from the house of Smt. Kamla Bai and thereafter on the next day morning when Sanjiv PW10, brother of Neeta went at the house of appellant, Neeta was not found and a false statement was made by Vikas that he had not taken away Neeta with him.11. For recovery of the dead-body also, it has come on record that it was recovered at the instance of Vikas on the basis of his disclosure statement while he was in custody, which is proved by the evidence of PW18 Narender Mohan Dy. S.P. Banswara, who has stated that accused Vikas led the public party to Gemmon bridge. He pointed out the place from where he pushed Neeta in the river and they found the dead-body at a distance of 1 k.m. At that time also, Vikas admitted that dead-body which was found from the river was that of Neeta. This discovery of the dead-body at the instance of accused is most relevant circumstances in the present case.12. Post-mortem examination report is proved by PW14 Dr. Vijay Kumar Mehta who was one Member of the Medical Board constituted for carrying out the post-mortem. According to him, the dead-body was fully decomposed; the tongue was hanging out of the mouth and eyes were protruding out; 7th cervical vertebra was broken; there was injury on the spinal cord and membrane thereon, where blood was clotted and the injury was sufficient to cause death in the ordinary course of nature. At the same time, she died due to drowning in water.13. Similarly, at the instance of accused ornaments were found in the safe of almirah from his room. PW8 Ravi Chaudhary has proved the recovery of a chain, three finger rings, one pair of ear tops from one almirah and one saree from another almirah from the sealed room of the house of accused Vikas. PW11 Vijay Kumar Vyas, Munsif and Judicial Magistrate, Banswara has deposed about the identification of the ornaments by PW3 Smt. Kamla Bai and PW10 Sanjiv. Further, the High Court has rightly relied upon the recovery of golden chain, which Neeta was wearing when she had gone to the house of Smt. Kamla Bai. The said article was recovered at the instance of accused from his house. This incriminating circumstance certainly points out the guilt of the accused otherwise the golden chain would not have been found from the almirah but it would have been on the dead body. From the aforesaid evidence, it is clear that there is no substance in the contention raised by the learned senior counsel for the appellant that there are material contradictions in the evidence of prosecution witnesses. In our view, except some minor variations the prosecution story is cogent and consistent with regard to demand of dowry and deceased Neeta accompanying her husband on the fateful day. Further, as there is evidence on record that accused came to the house of Smt. Kamla Bai on vicky and was seen by other witnesses riding the said motor bike, it was not necessary for the prosecution to prove that accused was owner of the vicky used by him. In the FIR lodged on 29th also, same story is stated. The submission of the learned senior counsel for the appellant that there was no reason for appellant to go to the house of PW3 for picking up deceased when she was driven out as stated by the prosecution witnesses requires no consideration because it is apparent from the evidence on record that Neetas parents were keen to maintain the matrimonial relations. Even though she was driven out on two to three occasions, she was again sent back by her parents to her matrimonial house. This keenness on the part of the parents to see that their daughter resides at her in-laws house peacefully has led to this incident. The High Court has also rightly relied upon the circumstance that accused made a false statement on the next day, when PW10 Sanjiv went to his house for giving medicines to Neeta.
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10. In our view, it is difficult to hold that High Court or trial Court committed any error in relying upon the aforesaid evidence for arriving at the conclusion that appellant had taken away Neeta from the house of Smt. Kamla Bai and thereafter on the next day morning when Sanjiv PW10, brother of Neeta went at the house of appellant, Neeta was not found and a false statement was made by Vikas that he had not taken away Neeta with him.11. For recovery of thealso, it has come on record that it was recovered at the instance of Vikas on the basis of his disclosure statement while he was in custody, which is proved by the evidence of PW18 Narender Mohan Dy. S.P. Banswara, who has stated that accused Vikas led the public party to Gemmon bridge. He pointed out the place from where he pushed Neeta in the river and they found theat a distance of 1 k.m. At that time also, Vikas admitted thatwhich was found from the river was that of Neeta. This discovery of theat the instance of accused is most relevant circumstances in the present case.12.examination report is proved by PW14 Dr. Vijay Kumar Mehta who was one Member of the Medical Board constituted for carrying out theAccording to him, thewas fully decomposed; the tongue was hanging out of the mouth and eyes were protruding out; 7th cervical vertebra was broken; there was injury on the spinal cord and membrane thereon, where blood was clotted and the injury was sufficient to cause death in the ordinary course of nature. At the same time, she died due to drowning in water.13. Similarly, at the instance of accused ornaments were found in the safe of almirah from his room. PW8 Ravi Chaudhary has proved the recovery of a chain, three finger rings, one pair of ear tops from one almirah and one saree from another almirah from the sealed room of the house of accused Vikas. PW11 Vijay Kumar Vyas, Munsif and Judicial Magistrate, Banswara has deposed about the identification of the ornaments by PW3 Smt. Kamla Bai and PW10 Sanjiv. Further, the High Court has rightly relied upon the recovery of golden chain, which Neeta was wearing when she had gone to the house of Smt. Kamla Bai. The said article was recovered at the instance of accused from his house. This incriminating circumstance certainly points out the guilt of the accused otherwise the golden chain would not have been found from the almirah but it would have been on the dead body. From the aforesaid evidence, it is clear that there is no substance in the contention raised by the learned senior counsel for the appellant that there are material contradictions in the evidence of prosecution witnesses. In our view, except some minor variations the prosecution story is cogent and consistent with regard to demand of dowry and deceased Neeta accompanying her husband on the fateful day. Further, as there is evidence on record that accused came to the house of Smt. Kamla Bai on vicky and was seen by other witnesses riding the said motor bike, it was not necessary for the prosecution to prove that accused was owner of the vicky used by him. In the FIR lodged on 29th also, same story is stated. The submission of the learned senior counsel for the appellant that there was no reason for appellant to go to the house of PW3 for picking up deceased when she was driven out as stated by the prosecution witnesses requires no consideration because it is apparent from the evidence on record that Neetas parents were keen to maintain the matrimonial relations. Even though she was driven out on two to three occasions, she was again sent back by her parents to her matrimonial house. This keenness on the part of the parents to see that their daughter resides at herhouse peacefully has led to this incident. The High Court has also rightly relied upon the circumstance that accused made a false statement on the next day, when PW10 Sanjiv went to his house for giving medicines to Neeta.
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Rupa Ashok Hurra & Another Vs. Ashok Hurra & Another | contrary to the provisions of the of 1952; in the background of that Act without precedent and in violation of the principles of natural justice, which needed to be corrected ex debito justitiae. 48. In Supreme Court Bar Associations case, (supra), on an application filed under Article 32 of the Constitution of India, the petitioner sought declaration that the Disciplinary Committee of the Bar Councils set up under the Advocates Act, 1961, alone had exclusive jurisdiction to inquire into and suspend or debar an advocate from practising law for professional or other misconduct and that the Supreme Court of India or any High Court in exercise of its inherent jurisdiction had no such jurisdiction, power or authority in that regard. 49. A Constitution Bench of this Court considered the correctness of the judgment of this Court in Re: Vinay Chandra Mishra, 1995 (2) SCC 584. The question which fell for consideration of this Court was: whether the punishment of debarring an advocate from practice and suspending his licence for a specified period could be passed in exercise of power of this Court under Article 129 read with Article 142 of the Constitution of India. There an errant advocate was found guilty of criminal contempt and was awarded the punishment of simple imprisonment for a period of six weeks and was also suspended from practice as an advocate for a period of three years from the date of the judgment of this Court for contempt of the High Court of Allahabad. As a result of that punishment all elective and nominated offices/posts then held by him in his capacity as an advocate had to be vacated by him. Elucidating the scope of the curative nature of power conferred on the Supreme Court under Article 142, it was observed: The plenary powers of the Supreme Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers, this power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which the Supreme Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. It is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of die Supreme Court to prevent clogging or obstruction of the stream of justice. Inspite of the width of power conferred by Article 142, the Constitution Bench took the view that suspending the advocate from practice and suspending his licence was not within the sweep of the power under the said Article and overruled the judgment in Re. V.C. Mishras case (supra). 50. In M.S. Ahlwats case, (supra), the petitioner, who was found guilty of forging signatures and making false statements at different stages before this Court, was inflicted punishment under Section 193 IPC in Afzal v. State of Haryana, 1996 (7) SCC 397. He filed an application under Article 32 of the Constitution assailing the validity of that order. Taking note of the complaint of miscarriage of justice by the Supreme Court in order his incarceration which ruined his career, acting without jurisdiction or without following the due procedure, it was observed that to perpetuate an error was not virtue but to correct it was a compulsion of judicial conscience. The correctness of the judgment was examined and the error was rectified. 51. In the cases discussed above this Court reconsidered its earlier judgments, inter alia, under Articles 129 and 142 which confer very wide powers on this Court to do complete justice between the parties. We have already indicated above that the scope of the power of this Court under Article 129 as a court of record and also adverted to the extent of power under Article 142 of the Constitution. 52. The upshot of the discussion in our view is that this Court to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power. 53. The next step is to specify the requirements to entertain such a curative petition under die inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exists, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. 54. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner. | 0[ds]8. Having carefully examined the historical background and the very nature of writ jurisdiction, which is a supervisory jurisdiction over inferior Courts/ Tribunals, in our view, on principle a writ of certiorari cannot be issued to co-ordinate courts and a fortiorari to to superior courts. Thus, it follows that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to different Bench of the same High Court much less can writ petition of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme. Therefore, the Supreme Court would not issue a writ under Article 32 to a High Court. Further, neither a smaller Bench nor a larger Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court. It is pointed out above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.14. It is, however, true that in Supreme Court Bar Association v. Union of India & Anr., 1998 (4) SCC 409 , a Constitution Bench and in M.S. Ahlwat v. State of Haryana & Anr., 2000 (1) SCC 278 a three-Judge Bench, and in other cases different Benches quashed the earlier judgments /orders of this Court in an application filed under Article 32 of the Constitution. But in those cases no one joined issue with regard to the maintainability of the writ petition under Article 32 of the Constitution. Therefore, those cases cannot be read as authority for the proposition that a writ of certiorari under Article 32 would lie to challenge an earlier final judgment of this Court15. On the analysis of the ratio laid down in the aforementioned cases, we reaffirm our considered view that a final judgment /order passed by this Court cannot be assailed in an application under Article 32 of the Constitution of India by an aggrieved person whether he was a partly to the case or not16. In fairness to the learned counsel for the parties, we record that all of them at the close of the hearing of these cases conceded that the jurisdiction of this Court under Article 32 of the Constitution cannot be invoked to challenge the validity of a final judgment/order passed by this Court after exhausting the remedy of review under Article 137 of the Constitution read with Order 11, Rule 1 of the Supreme Court Rules 1966.41. We may notice here that in these cases except in Raja Prithwi Chand Lall Choudhary, (supra) and ex parte Pinochet Ugarte (No.2) (supra), the question was in what circumstances the ratio in die earlier judgment of the highest court having precedent value could be departed. In the aforementioned two cases the decision was rendered on an application seeking reconsideration of the final judgment of the Federal Court and House of Lords respectively. In view of the specific provision of Article 137 of the Constitution read with Order XL, Rule 1 of the Supreme Court Rules, conferring power of review on this Court, the problem in entertaining a review petition against its final judgment which its precursor - the Federal Court - had to face, did not arise before this Court42. The petitioners in these writ petitions seek re-consideration of the final judgments of this Court after they have been unsuccessful in view petitions and in that these cases are different from the cases referred to above. The provision of Order XL Rule 5 of the Supreme Court Rules bars further application for review in the same matter. The concern of the Court now is whether any relief can be given to the petitioners who challenge the final judgment of this Court, though after disposal of review petitions, complaining of the gross abuse of the process of Court and irremedial injustice. In a State like India, governed by rule of law, certainty of law declared and the final decision rendered on merits in a lis between the parties by the highest court in the country is of paramount importance. The principle of finality is insisted upon not on the ground that a judgment given by the apex Court is impeccable but on the maximum Interest reipublicae ut sit finis litium [It concerns the state that there be an end of lawsuits. It is in the interest of the State that there should be an end of law-suit].44. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles - ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision making process not disclosing his links with a party to the case, or abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice - a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise in the rarest of the rate cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.51. In the cases discussed above this Court reconsidered its earlier judgments, inter alia, under Articles 129 and 142 which confer very wide powers on this Court to do complete justice between the parties. We have already indicated above that the scope of the power of this Court under Article 129 as a court of record and also adverted to the extent of power under Article 142 of the Constitution52. The upshot of the discussion in our view is that this Court to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power.53. The next step is to specify the requirements to entertain such a curative petition under die inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exists, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.54. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner55. The petitioner, in the curative petition, shall ever specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements. | 0 | 11,632 | 1,616 | ### Instruction:
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contrary to the provisions of the of 1952; in the background of that Act without precedent and in violation of the principles of natural justice, which needed to be corrected ex debito justitiae. 48. In Supreme Court Bar Associations case, (supra), on an application filed under Article 32 of the Constitution of India, the petitioner sought declaration that the Disciplinary Committee of the Bar Councils set up under the Advocates Act, 1961, alone had exclusive jurisdiction to inquire into and suspend or debar an advocate from practising law for professional or other misconduct and that the Supreme Court of India or any High Court in exercise of its inherent jurisdiction had no such jurisdiction, power or authority in that regard. 49. A Constitution Bench of this Court considered the correctness of the judgment of this Court in Re: Vinay Chandra Mishra, 1995 (2) SCC 584. The question which fell for consideration of this Court was: whether the punishment of debarring an advocate from practice and suspending his licence for a specified period could be passed in exercise of power of this Court under Article 129 read with Article 142 of the Constitution of India. There an errant advocate was found guilty of criminal contempt and was awarded the punishment of simple imprisonment for a period of six weeks and was also suspended from practice as an advocate for a period of three years from the date of the judgment of this Court for contempt of the High Court of Allahabad. As a result of that punishment all elective and nominated offices/posts then held by him in his capacity as an advocate had to be vacated by him. Elucidating the scope of the curative nature of power conferred on the Supreme Court under Article 142, it was observed: The plenary powers of the Supreme Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers, this power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which the Supreme Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. It is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of die Supreme Court to prevent clogging or obstruction of the stream of justice. Inspite of the width of power conferred by Article 142, the Constitution Bench took the view that suspending the advocate from practice and suspending his licence was not within the sweep of the power under the said Article and overruled the judgment in Re. V.C. Mishras case (supra). 50. In M.S. Ahlwats case, (supra), the petitioner, who was found guilty of forging signatures and making false statements at different stages before this Court, was inflicted punishment under Section 193 IPC in Afzal v. State of Haryana, 1996 (7) SCC 397. He filed an application under Article 32 of the Constitution assailing the validity of that order. Taking note of the complaint of miscarriage of justice by the Supreme Court in order his incarceration which ruined his career, acting without jurisdiction or without following the due procedure, it was observed that to perpetuate an error was not virtue but to correct it was a compulsion of judicial conscience. The correctness of the judgment was examined and the error was rectified. 51. In the cases discussed above this Court reconsidered its earlier judgments, inter alia, under Articles 129 and 142 which confer very wide powers on this Court to do complete justice between the parties. We have already indicated above that the scope of the power of this Court under Article 129 as a court of record and also adverted to the extent of power under Article 142 of the Constitution. 52. The upshot of the discussion in our view is that this Court to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power. 53. The next step is to specify the requirements to entertain such a curative petition under die inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exists, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. 54. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.
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this Court after exhausting the remedy of review under Article 137 of the Constitution read with Order 11, Rule 1 of the Supreme Court Rules 1966.41. We may notice here that in these cases except in Raja Prithwi Chand Lall Choudhary, (supra) and ex parte Pinochet Ugarte (No.2) (supra), the question was in what circumstances the ratio in die earlier judgment of the highest court having precedent value could be departed. In the aforementioned two cases the decision was rendered on an application seeking reconsideration of the final judgment of the Federal Court and House of Lords respectively. In view of the specific provision of Article 137 of the Constitution read with Order XL, Rule 1 of the Supreme Court Rules, conferring power of review on this Court, the problem in entertaining a review petition against its final judgment which its precursor - the Federal Court - had to face, did not arise before this Court42. The petitioners in these writ petitions seek re-consideration of the final judgments of this Court after they have been unsuccessful in view petitions and in that these cases are different from the cases referred to above. The provision of Order XL Rule 5 of the Supreme Court Rules bars further application for review in the same matter. The concern of the Court now is whether any relief can be given to the petitioners who challenge the final judgment of this Court, though after disposal of review petitions, complaining of the gross abuse of the process of Court and irremedial injustice. In a State like India, governed by rule of law, certainty of law declared and the final decision rendered on merits in a lis between the parties by the highest court in the country is of paramount importance. The principle of finality is insisted upon not on the ground that a judgment given by the apex Court is impeccable but on the maximum Interest reipublicae ut sit finis litium [It concerns the state that there be an end of lawsuits. It is in the interest of the State that there should be an end of law-suit].44. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles - ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision making process not disclosing his links with a party to the case, or abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice - a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise in the rarest of the rate cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.51. In the cases discussed above this Court reconsidered its earlier judgments, inter alia, under Articles 129 and 142 which confer very wide powers on this Court to do complete justice between the parties. We have already indicated above that the scope of the power of this Court under Article 129 as a court of record and also adverted to the extent of power under Article 142 of the Constitution52. The upshot of the discussion in our view is that this Court to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power.53. The next step is to specify the requirements to entertain such a curative petition under die inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exists, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.54. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner55. The petitioner, in the curative petition, shall ever specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.
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L.R. Ferror Alloys Limited Vs. Mahavir Mahto and Another | On March 23, 1995 an accident took place in the factory of the appellant at about 3 p.m. while respondent No. 1 (hereinafter referred to as the respondent) was pouring water for cooling the hot slab when the slab burst causing burn injuries on his face resulting in loss of sight in both eyes. A claim was made by the respondent before the Commissioner under the Workmens Compensation Act. The Commissioner determined the amount payable by way of compensation to the respondent. In addition he also quantified the penalty and interest payable for the delayed payment made by the appellant. The matter was carried in appeal to the High Court. There was no dispute regarding quantum of compensation payable, and all that was to be considered was whether the appellant is liable to pay the penalty and interest. On that aspect of the matter the learned single Judge noticed that the compensation due under the statute had not been paid within one month from the date of accident and therefore appellant was liable to pay penalty and interest from the date the amount became due and payable which meant the date of accident or at the latest one month thereafter. Therefore, the liability of the appellant being evident in those circumstances, the learned Single Judge declined to interfere with the order under appeal. The matter was carried in appeal further to the Division Bench and that appeal was dismissed holding that it was not maintainable in view of the decision in Smt. Chhaya Rani v. Smt. Dhan Devi, 1997 (2) All PLR, 147. Considering the facts and circumstances of this case we do not think the question raised before us as to whether any appeal lay on the Letters Patent side, need not be examined in this case. The only contention putforth before us is that the entire liability including penalty and interest will have to be reimbursed by the Insurance Company and this aspect has not been examined by the learned single Judge in the High Court and needs examination at our hands. In Ved Prakash Garg v. Premi Devi and Ors., 1997 SC 414 : 1998-I-LLJ-363, this Court after examining the entire scheme of the Act held that payment of interest and penalty are two distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay compensation upon default of payment of that amount within one month. Therefore, claim for compensation along with interest will have to be made good jointly by the Insurance Company with the insured employer. But, so far as the penalty imposed on the insured employer is on account of his personal fault Insurance Company cannot be made liable to reimburse penalty imposed on the employer. H | 1[ds]The only contention putforth before us is that the entire liability including penalty and interest will have to be reimbursed by the Insurance Company and this aspect has not been examined by the learned single Judge in the High Court and needs examination at our hands. In Ved Prakash Garg v. Premi Devi and Ors., 1997 SC 414 :, this Court after examining the entire scheme of the Act held that payment of interest and penalty are two distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay compensation upon default of payment of that amount within one month. Therefore, claim for compensation along with interest will have to be made good jointly by the Insurance Company with the insured employer. But, so far as the penalty imposed on the insured employer is on account of his personal fault Insurance Company cannot be made liable to reimburse penalty imposed on the employer. | 1 | 496 | 176 | ### Instruction:
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On March 23, 1995 an accident took place in the factory of the appellant at about 3 p.m. while respondent No. 1 (hereinafter referred to as the respondent) was pouring water for cooling the hot slab when the slab burst causing burn injuries on his face resulting in loss of sight in both eyes. A claim was made by the respondent before the Commissioner under the Workmens Compensation Act. The Commissioner determined the amount payable by way of compensation to the respondent. In addition he also quantified the penalty and interest payable for the delayed payment made by the appellant. The matter was carried in appeal to the High Court. There was no dispute regarding quantum of compensation payable, and all that was to be considered was whether the appellant is liable to pay the penalty and interest. On that aspect of the matter the learned single Judge noticed that the compensation due under the statute had not been paid within one month from the date of accident and therefore appellant was liable to pay penalty and interest from the date the amount became due and payable which meant the date of accident or at the latest one month thereafter. Therefore, the liability of the appellant being evident in those circumstances, the learned Single Judge declined to interfere with the order under appeal. The matter was carried in appeal further to the Division Bench and that appeal was dismissed holding that it was not maintainable in view of the decision in Smt. Chhaya Rani v. Smt. Dhan Devi, 1997 (2) All PLR, 147. Considering the facts and circumstances of this case we do not think the question raised before us as to whether any appeal lay on the Letters Patent side, need not be examined in this case. The only contention putforth before us is that the entire liability including penalty and interest will have to be reimbursed by the Insurance Company and this aspect has not been examined by the learned single Judge in the High Court and needs examination at our hands. In Ved Prakash Garg v. Premi Devi and Ors., 1997 SC 414 : 1998-I-LLJ-363, this Court after examining the entire scheme of the Act held that payment of interest and penalty are two distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay compensation upon default of payment of that amount within one month. Therefore, claim for compensation along with interest will have to be made good jointly by the Insurance Company with the insured employer. But, so far as the penalty imposed on the insured employer is on account of his personal fault Insurance Company cannot be made liable to reimburse penalty imposed on the employer. H
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The only contention putforth before us is that the entire liability including penalty and interest will have to be reimbursed by the Insurance Company and this aspect has not been examined by the learned single Judge in the High Court and needs examination at our hands. In Ved Prakash Garg v. Premi Devi and Ors., 1997 SC 414 :, this Court after examining the entire scheme of the Act held that payment of interest and penalty are two distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay compensation upon default of payment of that amount within one month. Therefore, claim for compensation along with interest will have to be made good jointly by the Insurance Company with the insured employer. But, so far as the penalty imposed on the insured employer is on account of his personal fault Insurance Company cannot be made liable to reimburse penalty imposed on the employer.
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Balwant Vithal Kadam Vs. Sunil Baburaoi Kadam | Court without dealing with the reasoning of the trial Court. Lastly he submitted that the suit filed by the original Plaintiff was barred by limitation.3. I have considered the submissions. In my view section 48(d) of the said Act of 1960 will not affect the legality of the suit agreement. In view of section 54 of the Transfer of Property Act, 1882 agreement for sale does not create any interest in favour of the purchaser in respect of the immovable property. Therefore, agreement for sale cannot be treated as alienation or transfer within the meaning of clause (d) of section 48 of the said Act of 1960. Apart from this fact, the Appellate court has observed that the original Defendant Nos. 1 and 2 have agreed to sell only a small portion of the property over which charge has been created in favour of the Land Development Bank and part of the loan has been repaid.4. So far as the second submission regarding readiness and willingness is concerned, I find that the Appellate Court has discussed the entire evidence. The Appellate Court after considering the pleadings and oral and documentary evidence on record has come to the conclusion that the Plaintiff has established his readiness and willingness to perform his part of the contract. The Appellate Court has observed that if at all any permission for transfer was to be obtained, the same was the obligation of the Defendants. So far as the bar of limitation is concerned, I find that in the Appellate Court the said issue was not specifically raised. The same was the case with the trial Court. The issue of limitation is a mixed question of law and fact considering the relevant provisions of the Limitation Act, 1963 which deal with the limitation for suit for specific performance."16. In our considered opinion, no fault could be found in the three findings of the High Court recorded on three pleas as the reasoning and the conclusion arrived at by the High Court is just and proper calling for no interference by this Court in the appeal.17. So far as the plea relating to validity and enforceability of the agreement in question is concerned, it was rightly held by the High Court to which we concur that the agreement in question is not hit by Section 48 of the Maharashtra Co-operative Society Act inasmuch as the agreement to sell in itself does not create any interest in the land nor does it amount to sale under Section 54 of the T.P. Act. It only enables the intending buyer to claim specific performance of such agreement on proving its terms. In other words, there lies a distinction between an agreement to sell, and sale. The latter creates an interest in the land once accomplished as defined under Section 54 of the T.P. Act. It was also rightly held on facts to which we concur that since the dues of the Land Development Bank were repaid, the question of applicability of Section 48 did not arise. We, therefore, find no ground to disagree with this factual finding.18. So far as the plea relating to readiness and willingness is concerned, it was again rightly held by the High Court to which we concur that this being a finding of fact, it could not be disturbed in second appeal and was binding on the High Court. It was more so when the first Appellate Court had recorded its finding by appreciating the entire evidence on record. We, therefore, find no ground to disagree with this finding of the High Court.19. So far as the plea relating to limitation is concerned, it was rightly held by the High Court to which we again concur that, firstly, it was neither raised before the Trial Court and nor before the first Appellate Court; and secondly, it being a mixed question of law and fact, the same could not be examined, for the first time, in second appeal by the High Court. We agree with the finding of the High Court calling for no interference.20. Now, so far as the plea relating to applicability of Section 31 of the Act to the agreement in question is concerned, the appellant, in our view, cannot be permitted to raise such plea, for the first time, in this appeal.21. It is for the reason that, firstly, this plea was neither raised by the appellant before the Trial Court and nor before the first Appellate Court and lastly, nor before the High Court.22. Secondly, in order to enable the appellant to raise any challenge to any plea, the party concerned has to first lay foundation in the pleadings of such plea which, in this case, was not. It is more so when a plea is a mixed question of law and fact.23. This Court being the last Court of appeal does not, therefore, consider it proper to allow the appellant to raise such plea, for the first time, under Article 136 of the Constitution in this appeal.24. Learned counsel for the appellant, however, contended that the appellant had raised this point in the arguments before the High Court but the same was not considered. We do not find it to be so. When we read the impugned judgment, we find that the High Court has specifically noted in Para 2 the three pleas raised by the appellant, which did not include this plea.25. Learned counsel for the appellant next contended that the agreements in question were not meant for sale of the land but were in the nature of security for the loan transaction entered between the parties. We are afraid we can go into this question in this appeal. It is again for the reason that firstly, it is a question of fact and secondly, it was not urged before the High Court.26. In the light of foregoing discussion, we find no merit in any of the submissions urged by the learned counsel for the appellant dealt with supra. | 0[ds]14. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dismiss the appeal finding no merit therein.In our considered opinion, no fault could be found in the three findings of the High Court recorded on three pleas as the reasoning and the conclusion arrived at by the High Court is just and proper calling for no interference by this Court in the appeal.17. So far as the plea relating to validity and enforceability of the agreement in question is concerned, it was rightly held by the High Court to which we concur that the agreement in question is not hit by Section 48 of the MaharashtraSociety Act inasmuch as the agreement to sell in itself does not create any interest in the land nor does it amount to sale under Section 54 of the T.P. Act. It only enables the intending buyer to claim specific performance of such agreement on proving its terms. In other words, there lies a distinction between an agreement to sell, and sale. The latter creates an interest in the land once accomplished as defined under Section 54 of the T.P. Act. It was also rightly held on facts to which we concur that since the dues of the Land Development Bank were repaid, the question of applicability of Section 48 did not arise. We, therefore, find no ground to disagree with this factual finding.18. So far as the plea relating to readiness and willingness is concerned, it was again rightly held by the High Court to which we concur that this being a finding of fact, it could not be disturbed in second appeal and was binding on the High Court. It was more so when the first Appellate Court had recorded its finding by appreciating the entire evidence on record. We, therefore, find no ground to disagree with this finding of the High Court.19. So far as the plea relating to limitation is concerned, it was rightly held by the High Court to which we again concur that, firstly, it was neither raised before the Trial Court and nor before the first Appellate Court; and secondly, it being a mixed question of law and fact, the same could not be examined, for the first time, in second appeal by the High Court. We agree with the finding of the High Court calling for no interference.20. Now, so far as the plea relating to applicability of Section 31 of the Act to the agreement in question is concerned, the appellant, in our view, cannot be permitted to raise such plea, for the first time, in this appeal.It is for the reason that, firstly, this plea was neither raised by the appellant before the Trial Court and nor before the first Appellate Court and lastly, nor before the High Court.22. Secondly, in order to enable the appellant to raise any challenge to any plea, the party concerned has to first lay foundation in the pleadings of such plea which, in this case, was not. It is more so when a plea is a mixed question of law and fact.23. This Court being the last Court of appeal does not, therefore, consider it proper to allow the appellant to raise such plea, for the first time, under Article 136 of the Constitution in thisdo not find it to be so. When we read the impugned judgment, we find that the High Court has specifically noted in Para 2 the three pleas raised by the appellant, which did not include thisare afraid we can go into this question in this appeal.It is again for the reason that firstly, it is a question of fact and secondly, it was not urged before the High Court.26. In the light of foregoing discussion, we find no merit in any of the submissions urged by the learned counsel for the appellant dealt with supra. | 0 | 1,899 | 722 | ### Instruction:
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Court without dealing with the reasoning of the trial Court. Lastly he submitted that the suit filed by the original Plaintiff was barred by limitation.3. I have considered the submissions. In my view section 48(d) of the said Act of 1960 will not affect the legality of the suit agreement. In view of section 54 of the Transfer of Property Act, 1882 agreement for sale does not create any interest in favour of the purchaser in respect of the immovable property. Therefore, agreement for sale cannot be treated as alienation or transfer within the meaning of clause (d) of section 48 of the said Act of 1960. Apart from this fact, the Appellate court has observed that the original Defendant Nos. 1 and 2 have agreed to sell only a small portion of the property over which charge has been created in favour of the Land Development Bank and part of the loan has been repaid.4. So far as the second submission regarding readiness and willingness is concerned, I find that the Appellate Court has discussed the entire evidence. The Appellate Court after considering the pleadings and oral and documentary evidence on record has come to the conclusion that the Plaintiff has established his readiness and willingness to perform his part of the contract. The Appellate Court has observed that if at all any permission for transfer was to be obtained, the same was the obligation of the Defendants. So far as the bar of limitation is concerned, I find that in the Appellate Court the said issue was not specifically raised. The same was the case with the trial Court. The issue of limitation is a mixed question of law and fact considering the relevant provisions of the Limitation Act, 1963 which deal with the limitation for suit for specific performance."16. In our considered opinion, no fault could be found in the three findings of the High Court recorded on three pleas as the reasoning and the conclusion arrived at by the High Court is just and proper calling for no interference by this Court in the appeal.17. So far as the plea relating to validity and enforceability of the agreement in question is concerned, it was rightly held by the High Court to which we concur that the agreement in question is not hit by Section 48 of the Maharashtra Co-operative Society Act inasmuch as the agreement to sell in itself does not create any interest in the land nor does it amount to sale under Section 54 of the T.P. Act. It only enables the intending buyer to claim specific performance of such agreement on proving its terms. In other words, there lies a distinction between an agreement to sell, and sale. The latter creates an interest in the land once accomplished as defined under Section 54 of the T.P. Act. It was also rightly held on facts to which we concur that since the dues of the Land Development Bank were repaid, the question of applicability of Section 48 did not arise. We, therefore, find no ground to disagree with this factual finding.18. So far as the plea relating to readiness and willingness is concerned, it was again rightly held by the High Court to which we concur that this being a finding of fact, it could not be disturbed in second appeal and was binding on the High Court. It was more so when the first Appellate Court had recorded its finding by appreciating the entire evidence on record. We, therefore, find no ground to disagree with this finding of the High Court.19. So far as the plea relating to limitation is concerned, it was rightly held by the High Court to which we again concur that, firstly, it was neither raised before the Trial Court and nor before the first Appellate Court; and secondly, it being a mixed question of law and fact, the same could not be examined, for the first time, in second appeal by the High Court. We agree with the finding of the High Court calling for no interference.20. Now, so far as the plea relating to applicability of Section 31 of the Act to the agreement in question is concerned, the appellant, in our view, cannot be permitted to raise such plea, for the first time, in this appeal.21. It is for the reason that, firstly, this plea was neither raised by the appellant before the Trial Court and nor before the first Appellate Court and lastly, nor before the High Court.22. Secondly, in order to enable the appellant to raise any challenge to any plea, the party concerned has to first lay foundation in the pleadings of such plea which, in this case, was not. It is more so when a plea is a mixed question of law and fact.23. This Court being the last Court of appeal does not, therefore, consider it proper to allow the appellant to raise such plea, for the first time, under Article 136 of the Constitution in this appeal.24. Learned counsel for the appellant, however, contended that the appellant had raised this point in the arguments before the High Court but the same was not considered. We do not find it to be so. When we read the impugned judgment, we find that the High Court has specifically noted in Para 2 the three pleas raised by the appellant, which did not include this plea.25. Learned counsel for the appellant next contended that the agreements in question were not meant for sale of the land but were in the nature of security for the loan transaction entered between the parties. We are afraid we can go into this question in this appeal. It is again for the reason that firstly, it is a question of fact and secondly, it was not urged before the High Court.26. In the light of foregoing discussion, we find no merit in any of the submissions urged by the learned counsel for the appellant dealt with supra.
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14. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dismiss the appeal finding no merit therein.In our considered opinion, no fault could be found in the three findings of the High Court recorded on three pleas as the reasoning and the conclusion arrived at by the High Court is just and proper calling for no interference by this Court in the appeal.17. So far as the plea relating to validity and enforceability of the agreement in question is concerned, it was rightly held by the High Court to which we concur that the agreement in question is not hit by Section 48 of the MaharashtraSociety Act inasmuch as the agreement to sell in itself does not create any interest in the land nor does it amount to sale under Section 54 of the T.P. Act. It only enables the intending buyer to claim specific performance of such agreement on proving its terms. In other words, there lies a distinction between an agreement to sell, and sale. The latter creates an interest in the land once accomplished as defined under Section 54 of the T.P. Act. It was also rightly held on facts to which we concur that since the dues of the Land Development Bank were repaid, the question of applicability of Section 48 did not arise. We, therefore, find no ground to disagree with this factual finding.18. So far as the plea relating to readiness and willingness is concerned, it was again rightly held by the High Court to which we concur that this being a finding of fact, it could not be disturbed in second appeal and was binding on the High Court. It was more so when the first Appellate Court had recorded its finding by appreciating the entire evidence on record. We, therefore, find no ground to disagree with this finding of the High Court.19. So far as the plea relating to limitation is concerned, it was rightly held by the High Court to which we again concur that, firstly, it was neither raised before the Trial Court and nor before the first Appellate Court; and secondly, it being a mixed question of law and fact, the same could not be examined, for the first time, in second appeal by the High Court. We agree with the finding of the High Court calling for no interference.20. Now, so far as the plea relating to applicability of Section 31 of the Act to the agreement in question is concerned, the appellant, in our view, cannot be permitted to raise such plea, for the first time, in this appeal.It is for the reason that, firstly, this plea was neither raised by the appellant before the Trial Court and nor before the first Appellate Court and lastly, nor before the High Court.22. Secondly, in order to enable the appellant to raise any challenge to any plea, the party concerned has to first lay foundation in the pleadings of such plea which, in this case, was not. It is more so when a plea is a mixed question of law and fact.23. This Court being the last Court of appeal does not, therefore, consider it proper to allow the appellant to raise such plea, for the first time, under Article 136 of the Constitution in thisdo not find it to be so. When we read the impugned judgment, we find that the High Court has specifically noted in Para 2 the three pleas raised by the appellant, which did not include thisare afraid we can go into this question in this appeal.It is again for the reason that firstly, it is a question of fact and secondly, it was not urged before the High Court.26. In the light of foregoing discussion, we find no merit in any of the submissions urged by the learned counsel for the appellant dealt with supra.
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BHAVYANATH REPRESENTED BY POWER OF ATTORNEY HOLDER Vs. K.V. BALAN (DEAD) THROUGH LRS | finding that Gopinathan was actively involved in the contract. We have eluded to the fact that Gopinathan was a witness to the agreement to safely conclude that the father of the plaintiff was in the know of things and he was involved in the transaction. We have referred to Gopinathan, figuring in the deposition to arrive at the conclusion that the plaintiff, though the actual party to the agreement, the moving force and one who intended to support the plaintiff was his father. The assets which are relied on by the plaintiff to establish his financial capacity would appear to belong to the close relatives of the plaintiff, namely, his father, his mother and his wife. We must recall that in his deposition PW1, when he was asked as to on what basis he would claim that he had the financial capacity on 24.03.2008, his answer was that he had gold ornaments which were worth about Rs.24,00,000/- and he had about Rs.8,00,000/- in cash having regard to the payment of Rs.5,00,000/- by way of advance and further payment to be made, after making the advance, if Rs.24,00,000/- worth of gold being in the possession of the plaintiffs family members besides Rs.8,00,000/- was there, certainly that would suffice to establish the case of the plaintiff about his financial capacity and readiness to perform the contract. The law is certainly not that the purchaser in a suit for specific relief must prove that he was having cash with him from the date of the agreement till the relevant date. What is important is that he had the capacity to allow the deal to go through. If gold was available, as claimed, we would think that on a pragmatic view of the matter, it may be idle to contend that it could not be converted into cash either by immediate sale or by raising a loan. 35. We must, however, deal with certain other contentions before we come to a conclusion in this regard. The defendant has undoubtedly a case that the gold ornaments though claimed to be that of the mother and the wife of the plaintiff, without examining them as witnesses and without their deposition showing that they had those gold ornaments in their possession and that they were willing to employ them for the purpose of generating funds for the plaintiff, the Court cannot conclude the matter in favour of the plaintiff. We would think that it may be true that in a case of this nature and in view of the context, it may have been more appropriate that the relatives were examined. Their non-examination, however, may not fatal to the plaintiff. It must be realized that the relatives involved are none other than the mother and the wife of the plaintiff. Though subsequent their inclination can be inferred from their going to the valuer PW4. In such circumstances, we would think, it may be carrying matters a little too far to decline specific relief, particularly which was granted by the trial Court in its discretion to contend that the mother and the wife have not come forward to express their willingness to make available ornaments for the purpose of the plaintiff. In fact, no suggestion is seen put to the plaintiff about the same. 36. The further question may, however, arise as on the relevant date whether the gold ornaments having the value of Rs.24,00,000/- was available with the mother and the wife of the plaintiff. We have noticed the deposition of PW4. He has stated that neither the bills nor receipts relating to the gold ornaments were produced. No documents relating to the ownership of the gold ornaments were also produced. Could it be said, therefore, that the gold ornaments never belonged to the mother and the wife of the plaintiff and the valuation report is therefore robbed of any value that might otherwise be attached to it. 37. It is here we may notice that the family of the plaintiff was possessed of considerable assets even otherwise in terms of landed property. We further notice that the plaintiff has proceeded to purchase another 10 cents during the period when the contract was in existence (relied upon by the trial Court to establish the readiness and willingness in terms of capacity apparently). 38. A1 contract is dated 25.04.2007. Plaintiff was, no doubt, 21 years of age. His father Gopinathan was a witness to A1. Knowing these facts, defendant entered into the agreement, and what is more, received Rs.2 lakhs on the date of the agreement. Further, a sum of Rs.3 lakhs was received under the agreement on 25.08.2007. The property is measured on 16.03.2008. On the third day from 24.03.2008, which was the last day for the execution of the sale deed, i.e., on 27.03.2008, the suit came to be filed. After the advance paid by the plaintiff is deducted, the balance amount including the stamp duty and expenses would not exceed Rs.24 lakhs. There was the testimony of the plaintiff as to how he intended to pay the consideration on 24.03.2008. There was evidence of plaintiff having gold ornaments with him and family members worth about Rs.24 lakhs and cash of about Rs.8 lakhs. It also appeared that one of the family members of the appellant had lands in her name. Even the appellant purchased other land during the period of contract. In regard to the statement by the plaintiff that gold ornaments worth about Rs.24 lakhs were held by him and family members and there was cash of about Rs. 8 lakhs, the plaintiff is not cross-examined as such. At any rate, there is no serious dispute raised when he was cross-examined in this regard. There is no question raised about the family members not making available the gold ornaments or that it was not available with them. The non-availability of bills relating to the gold jewellery to prove ownership as such may not be in the facts of this case fatal to the plaintiff. | 1[ds]In Ext.A1 agreement the defendant had agreed to sell 75 ¾ cents acquired under document No.1405/1975. The price was fixed as Rs.34,000/- per cent. The extent was no doubt to be found on actual measurement. The trial Court found that though it is not stipulated as to who will carry measurement, but the defendant being in possession he was, to undertake the measurement. The defendant, when he was examined as DW1, has inter alia stated as follows; For the purpose of determination of sale consideration property had to be measured. He further states that after one week of the date of execution of the agreement Gopi brought a person and measured the property. When he saw the measuring activity, he went to the property and asked for a copy of the measurement details, but was not given. We proceed on the basis that the reference to Gopinath, is none other than the father of the plaintiff. He admits that these facts are not stated in the written statement. He states that he did not know about the measurement of the property on 16.03.2008. There was no opportunity to get the plaint schedule property measured before the same was to be assigned. He specifically states that he has not convinced them the actual measurement of the plaint schedule property. He further states that no measurement of the plaint schedule property was done before the expiry of the agreement period. He further states that he has not got measured the extent of property after execution of the agreement. He states that he does not remember about the statement in Ext.A42 about the extent of the property being convinced of by the plaintiff and his father to be 70.950 cents. He specifically states that it is not right to say that the plaint schedule property has been got measured on 16.03.2008. He states that he was not present at that time. We would think that the High Court was in error in holding that on measurement being carried on 16.03.2008, one of the conditions for the performance of agreement was satisfied if it is meant to find that the defendant had carried out the obligations under the contract. It is noticed from paragraph 23 of the impugned judgment that contrary to his deposition, which we have adverted to as DW1, it was contended on behalf of the defendant that the measurement on 16.03.2008 was at his instance. It is noticed that under Ext.A1 agreement the extent was stated to be 75 ¾ cents, under a particular assignment deed. The consideration was undoubtedly fixed with regard to the actual extent at the rate of Rs.34,000/- per cent. It is clear that the measurement was essential for executing the conveyance and the performance of further mutual obligations. When the lawyers notice was caused to be sent on 24.01.2008 by the defendant, he adverts to 75 ¾ cents. There is no reference of any measurement having been done on 16.05.2007. We are inclined to find that it was the plaintiff who took the initiative and the property indeed was measured on 16.03.2008. We are further inclined to agree with the trial Court that the plaintiff, it is who financed the measurement by making payment as he claimed. Testimony of the witness accepted by the trial Court, which has had opportunity to watch the demeanour of the witness is not to be likely shaken by the appellate court18. The High Court has overlooked this aspect and came to the conclusion that there was no dispute relating to the title. Under Ext.A1 agreement, it was incumbent upon the defendant to convince the plaintiff about the title of the property and other connected things. No doubt, the plaintiff had made a demand for the original title deeds relating to the property, as he wanted to use them for the purpose of taking a loan in connection with his proposed construction. This we do not think he was entitled under the contract and if the defendant refused the title deeds we would not be in a position to blame him. We are, therefore, of the view that the High Court has fallen into an error in reversing the finding that the defendant was in breach of his obligations19. We have noticed the law to be that it does not suffice for the plaintiff in a suit for specific performance to establish that the defendant was in breach to seek a decree for specific relief. The plaintiff must further establish, if it is contested that he was ready and willing from the date of the contract to perform his obligations20. In a contract, a contract usually embodies mutual obligations. The order of performance of obligations by the parties to the contract would have an impact on the aspect relating to readiness and willingness undoubtedly. In fact, readiness and willingness on the part of plaintiff makes its appearance right from the time of the reply notice sent by the plaintiff and continued in his pleadings. We are, however, concerned in this case only with the aspect relating whether he has proved despite what he might have established against the defendant that he was ready to perform his obligations. To begin with, the plaintiff has filed the suit on 27.03.2008. It must be remembered that under Ext.A1 agreement, the last date for executing the sale deed was 24.03.2008. This means on the third day of the date fixed under the contract on the allegation that the defendant resiled from the promise to execute the sale deed, the plaintiff has knocked at the doors of the Court seeking specific relief34. The plaintiff on the date of the suit in the year 2007 was 21 years. The agreement would show that the witnesses to the agreement are one Manoharan, who is none other than the son of the defendant and the other witness is Gopinathan, the father of the plaintiff. The trial Court has entered a finding that Gopinathan was actively involved in the contract. We have eluded to the fact that Gopinathan was a witness to the agreement to safely conclude that the father of the plaintiff was in the know of things and he was involved in the transaction. We have referred to Gopinathan, figuring in the deposition to arrive at the conclusion that the plaintiff, though the actual party to the agreement, the moving force and one who intended to support the plaintiff was his father. The assets which are relied on by the plaintiff to establish his financial capacity would appear to belong to the close relatives of the plaintiff, namely, his father, his mother and his wife. We must recall that in his deposition PW1, when he was asked as to on what basis he would claim that he had the financial capacity on 24.03.2008, his answer was that he had gold ornaments which were worth about Rs.24,00,000/- and he had about Rs.8,00,000/- in cash having regard to the payment of Rs.5,00,000/- by way of advance and further payment to be made, after making the advance, if Rs.24,00,000/- worth of gold being in the possession of the plaintiffs family members besides Rs.8,00,000/- was there, certainly that would suffice to establish the case of the plaintiff about his financial capacity and readiness to perform the contract. The law is certainly not that the purchaser in a suit for specific relief must prove that he was having cash with him from the date of the agreement till the relevant date. What is important is that he had the capacity to allow the deal to go through. If gold was available, as claimed, we would think that on a pragmatic view of the matter, it may be idle to contend that it could not be converted into cash either by immediate sale or by raising a loan35. We must, however, deal with certain other contentions before we come to a conclusion in this regard. The defendant has undoubtedly a case that the gold ornaments though claimed to be that of the mother and the wife of the plaintiff, without examining them as witnesses and without their deposition showing that they had those gold ornaments in their possession and that they were willing to employ them for the purpose of generating funds for the plaintiff, the Court cannot conclude the matter in favour of the plaintiff. We would think that it may be true that in a case of this nature and in view of the context, it may have been more appropriate that the relatives were examined. Their non-examination, however, may not fatal to the plaintiff. It must be realized that the relatives involved are none other than the mother and the wife of the plaintiff. Though subsequent their inclination can be inferred from their going to the valuer PW4. In such circumstances, we would think, it may be carrying matters a little too far to decline specific relief, particularly which was granted by the trial Court in its discretion to contend that the mother and the wife have not come forward to express their willingness to make available ornaments for the purpose of the plaintiff. In fact, no suggestion is seen put to the plaintiff about the sameWe have noticed the deposition of PW4. He has stated that neither the bills nor receipts relating to the gold ornaments were produced. No documents relating to the ownership of the gold ornaments were also produced. Could it be said, therefore, that the gold ornaments never belonged to the mother and the wife of the plaintiff and the valuation report is therefore robbed of any value that might otherwise be attached to it37. It is here we may notice that the family of the plaintiff was possessed of considerable assets even otherwise in terms of landed property. We further notice that the plaintiff has proceeded to purchase another 10 cents during the period when the contract was in existence (relied upon by the trial Court to establish the readiness and willingness in terms of capacity apparently)38. A1 contract is dated 25.04.2007. Plaintiff was, no doubt, 21 years of age. His father Gopinathan was a witness to A1. Knowing these facts, defendant entered into the agreement, and what is more, received Rs.2 lakhs on the date of the agreement. Further, a sum of Rs.3 lakhs was received under the agreement on 25.08.2007. The property is measured on 16.03.2008. On the third day from 24.03.2008, which was the last day for the execution of the sale deed, i.e., on 27.03.2008, the suit came to be filed. After the advance paid by the plaintiff is deducted, the balance amount including the stamp duty and expenses would not exceed Rs.24 lakhs. There was the testimony of the plaintiff as to how he intended to pay the consideration on 24.03.2008. There was evidence of plaintiff having gold ornaments with him and family members worth about Rs.24 lakhs and cash of about Rs.8 lakhs. It also appeared that one of the family members of the appellant had lands in her name. Even the appellant purchased other land during the period of contract. In regard to the statement by the plaintiff that gold ornaments worth about Rs.24 lakhs were held by him and family members and there was cash of about Rs. 8 lakhs, the plaintiff is not cross-examined as such. At any rate, there is no serious dispute raised when he was cross-examined in this regard. There is no question raised about the family members not making available the gold ornaments or that it was not available with them. The non-availability of bills relating to the gold jewellery to prove ownership as such may not be in the facts of this case fatal to the plaintiff. | 1 | 8,647 | 2,114 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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finding that Gopinathan was actively involved in the contract. We have eluded to the fact that Gopinathan was a witness to the agreement to safely conclude that the father of the plaintiff was in the know of things and he was involved in the transaction. We have referred to Gopinathan, figuring in the deposition to arrive at the conclusion that the plaintiff, though the actual party to the agreement, the moving force and one who intended to support the plaintiff was his father. The assets which are relied on by the plaintiff to establish his financial capacity would appear to belong to the close relatives of the plaintiff, namely, his father, his mother and his wife. We must recall that in his deposition PW1, when he was asked as to on what basis he would claim that he had the financial capacity on 24.03.2008, his answer was that he had gold ornaments which were worth about Rs.24,00,000/- and he had about Rs.8,00,000/- in cash having regard to the payment of Rs.5,00,000/- by way of advance and further payment to be made, after making the advance, if Rs.24,00,000/- worth of gold being in the possession of the plaintiffs family members besides Rs.8,00,000/- was there, certainly that would suffice to establish the case of the plaintiff about his financial capacity and readiness to perform the contract. The law is certainly not that the purchaser in a suit for specific relief must prove that he was having cash with him from the date of the agreement till the relevant date. What is important is that he had the capacity to allow the deal to go through. If gold was available, as claimed, we would think that on a pragmatic view of the matter, it may be idle to contend that it could not be converted into cash either by immediate sale or by raising a loan. 35. We must, however, deal with certain other contentions before we come to a conclusion in this regard. The defendant has undoubtedly a case that the gold ornaments though claimed to be that of the mother and the wife of the plaintiff, without examining them as witnesses and without their deposition showing that they had those gold ornaments in their possession and that they were willing to employ them for the purpose of generating funds for the plaintiff, the Court cannot conclude the matter in favour of the plaintiff. We would think that it may be true that in a case of this nature and in view of the context, it may have been more appropriate that the relatives were examined. Their non-examination, however, may not fatal to the plaintiff. It must be realized that the relatives involved are none other than the mother and the wife of the plaintiff. Though subsequent their inclination can be inferred from their going to the valuer PW4. In such circumstances, we would think, it may be carrying matters a little too far to decline specific relief, particularly which was granted by the trial Court in its discretion to contend that the mother and the wife have not come forward to express their willingness to make available ornaments for the purpose of the plaintiff. In fact, no suggestion is seen put to the plaintiff about the same. 36. The further question may, however, arise as on the relevant date whether the gold ornaments having the value of Rs.24,00,000/- was available with the mother and the wife of the plaintiff. We have noticed the deposition of PW4. He has stated that neither the bills nor receipts relating to the gold ornaments were produced. No documents relating to the ownership of the gold ornaments were also produced. Could it be said, therefore, that the gold ornaments never belonged to the mother and the wife of the plaintiff and the valuation report is therefore robbed of any value that might otherwise be attached to it. 37. It is here we may notice that the family of the plaintiff was possessed of considerable assets even otherwise in terms of landed property. We further notice that the plaintiff has proceeded to purchase another 10 cents during the period when the contract was in existence (relied upon by the trial Court to establish the readiness and willingness in terms of capacity apparently). 38. A1 contract is dated 25.04.2007. Plaintiff was, no doubt, 21 years of age. His father Gopinathan was a witness to A1. Knowing these facts, defendant entered into the agreement, and what is more, received Rs.2 lakhs on the date of the agreement. Further, a sum of Rs.3 lakhs was received under the agreement on 25.08.2007. The property is measured on 16.03.2008. On the third day from 24.03.2008, which was the last day for the execution of the sale deed, i.e., on 27.03.2008, the suit came to be filed. After the advance paid by the plaintiff is deducted, the balance amount including the stamp duty and expenses would not exceed Rs.24 lakhs. There was the testimony of the plaintiff as to how he intended to pay the consideration on 24.03.2008. There was evidence of plaintiff having gold ornaments with him and family members worth about Rs.24 lakhs and cash of about Rs.8 lakhs. It also appeared that one of the family members of the appellant had lands in her name. Even the appellant purchased other land during the period of contract. In regard to the statement by the plaintiff that gold ornaments worth about Rs.24 lakhs were held by him and family members and there was cash of about Rs. 8 lakhs, the plaintiff is not cross-examined as such. At any rate, there is no serious dispute raised when he was cross-examined in this regard. There is no question raised about the family members not making available the gold ornaments or that it was not available with them. The non-availability of bills relating to the gold jewellery to prove ownership as such may not be in the facts of this case fatal to the plaintiff.
### Response:
1
### Explanation:
that the witnesses to the agreement are one Manoharan, who is none other than the son of the defendant and the other witness is Gopinathan, the father of the plaintiff. The trial Court has entered a finding that Gopinathan was actively involved in the contract. We have eluded to the fact that Gopinathan was a witness to the agreement to safely conclude that the father of the plaintiff was in the know of things and he was involved in the transaction. We have referred to Gopinathan, figuring in the deposition to arrive at the conclusion that the plaintiff, though the actual party to the agreement, the moving force and one who intended to support the plaintiff was his father. The assets which are relied on by the plaintiff to establish his financial capacity would appear to belong to the close relatives of the plaintiff, namely, his father, his mother and his wife. We must recall that in his deposition PW1, when he was asked as to on what basis he would claim that he had the financial capacity on 24.03.2008, his answer was that he had gold ornaments which were worth about Rs.24,00,000/- and he had about Rs.8,00,000/- in cash having regard to the payment of Rs.5,00,000/- by way of advance and further payment to be made, after making the advance, if Rs.24,00,000/- worth of gold being in the possession of the plaintiffs family members besides Rs.8,00,000/- was there, certainly that would suffice to establish the case of the plaintiff about his financial capacity and readiness to perform the contract. The law is certainly not that the purchaser in a suit for specific relief must prove that he was having cash with him from the date of the agreement till the relevant date. What is important is that he had the capacity to allow the deal to go through. If gold was available, as claimed, we would think that on a pragmatic view of the matter, it may be idle to contend that it could not be converted into cash either by immediate sale or by raising a loan35. We must, however, deal with certain other contentions before we come to a conclusion in this regard. The defendant has undoubtedly a case that the gold ornaments though claimed to be that of the mother and the wife of the plaintiff, without examining them as witnesses and without their deposition showing that they had those gold ornaments in their possession and that they were willing to employ them for the purpose of generating funds for the plaintiff, the Court cannot conclude the matter in favour of the plaintiff. We would think that it may be true that in a case of this nature and in view of the context, it may have been more appropriate that the relatives were examined. Their non-examination, however, may not fatal to the plaintiff. It must be realized that the relatives involved are none other than the mother and the wife of the plaintiff. Though subsequent their inclination can be inferred from their going to the valuer PW4. In such circumstances, we would think, it may be carrying matters a little too far to decline specific relief, particularly which was granted by the trial Court in its discretion to contend that the mother and the wife have not come forward to express their willingness to make available ornaments for the purpose of the plaintiff. In fact, no suggestion is seen put to the plaintiff about the sameWe have noticed the deposition of PW4. He has stated that neither the bills nor receipts relating to the gold ornaments were produced. No documents relating to the ownership of the gold ornaments were also produced. Could it be said, therefore, that the gold ornaments never belonged to the mother and the wife of the plaintiff and the valuation report is therefore robbed of any value that might otherwise be attached to it37. It is here we may notice that the family of the plaintiff was possessed of considerable assets even otherwise in terms of landed property. We further notice that the plaintiff has proceeded to purchase another 10 cents during the period when the contract was in existence (relied upon by the trial Court to establish the readiness and willingness in terms of capacity apparently)38. A1 contract is dated 25.04.2007. Plaintiff was, no doubt, 21 years of age. His father Gopinathan was a witness to A1. Knowing these facts, defendant entered into the agreement, and what is more, received Rs.2 lakhs on the date of the agreement. Further, a sum of Rs.3 lakhs was received under the agreement on 25.08.2007. The property is measured on 16.03.2008. On the third day from 24.03.2008, which was the last day for the execution of the sale deed, i.e., on 27.03.2008, the suit came to be filed. After the advance paid by the plaintiff is deducted, the balance amount including the stamp duty and expenses would not exceed Rs.24 lakhs. There was the testimony of the plaintiff as to how he intended to pay the consideration on 24.03.2008. There was evidence of plaintiff having gold ornaments with him and family members worth about Rs.24 lakhs and cash of about Rs.8 lakhs. It also appeared that one of the family members of the appellant had lands in her name. Even the appellant purchased other land during the period of contract. In regard to the statement by the plaintiff that gold ornaments worth about Rs.24 lakhs were held by him and family members and there was cash of about Rs. 8 lakhs, the plaintiff is not cross-examined as such. At any rate, there is no serious dispute raised when he was cross-examined in this regard. There is no question raised about the family members not making available the gold ornaments or that it was not available with them. The non-availability of bills relating to the gold jewellery to prove ownership as such may not be in the facts of this case fatal to the plaintiff.
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State of Mysore Vs. Karnatak Coffee Company | SIKRI, J.1. This is an appeal by special leave by the State of Mysore against the judgment of the High Court allowing in part the application under Article 226 of the Constitution, of the respondent M/s. Karnatak Coffee Co. The High Court held that no tax was payable under the Central Sales Tax Act, 1956, in respect of the sales of coffee powder made by the petitioner during the period between July 1, 1957, and September 30, 1957. If the coffee powder had been sold by the assessee inside the State of Mysore instead of selling it in the course of inter-State trade, no sales tax could have been demanded from him under Mysore Sales Tax Act, 1948, or the Mysore Sales Tax Act, 1957.2. Our decision in the State of Mysore v. Y. L. Setty and Sons (Civil Appeal No. 165 of 1964 - Judgment pronounced on November 10, 1964; Since reported at [1965] 16 S.T.C. 231), which we have just disposed of, governs this appeal, as no other point was raised in the appeal. Accordingly, following our decision in State of Mysore v. Y. L. Setty and Sons, (Civil Appeal No. 165 of 1964 - Judgment pronounced on November 10, 1964; Since reported at [1965] 16 S.T.C. 231), we dismiss the appeal with costs.By the Court3. | 1[ds]Our decision in the State of Mysore v. Y. L. Setty and Sons (Civil Appeal No. 165 of 1964Judgment pronounced on November 10, 1964; Since reported at [1965] 16 S.T.C. 231), which we have just disposed of, governs this appeal, as no other point was raised in the appeal. Accordingly, following our decision in State of Mysore v. Y. L. Setty and Sons, (Civil Appeal No. 165 of 1964Judgment pronounced on November 10, 1964; Since reported at [1965] 16 S.T.C. 231), we dismiss the appeal with costs.By the Court | 1 | 258 | 116 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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SIKRI, J.1. This is an appeal by special leave by the State of Mysore against the judgment of the High Court allowing in part the application under Article 226 of the Constitution, of the respondent M/s. Karnatak Coffee Co. The High Court held that no tax was payable under the Central Sales Tax Act, 1956, in respect of the sales of coffee powder made by the petitioner during the period between July 1, 1957, and September 30, 1957. If the coffee powder had been sold by the assessee inside the State of Mysore instead of selling it in the course of inter-State trade, no sales tax could have been demanded from him under Mysore Sales Tax Act, 1948, or the Mysore Sales Tax Act, 1957.2. Our decision in the State of Mysore v. Y. L. Setty and Sons (Civil Appeal No. 165 of 1964 - Judgment pronounced on November 10, 1964; Since reported at [1965] 16 S.T.C. 231), which we have just disposed of, governs this appeal, as no other point was raised in the appeal. Accordingly, following our decision in State of Mysore v. Y. L. Setty and Sons, (Civil Appeal No. 165 of 1964 - Judgment pronounced on November 10, 1964; Since reported at [1965] 16 S.T.C. 231), we dismiss the appeal with costs.By the Court3.
### Response:
1
### Explanation:
Our decision in the State of Mysore v. Y. L. Setty and Sons (Civil Appeal No. 165 of 1964Judgment pronounced on November 10, 1964; Since reported at [1965] 16 S.T.C. 231), which we have just disposed of, governs this appeal, as no other point was raised in the appeal. Accordingly, following our decision in State of Mysore v. Y. L. Setty and Sons, (Civil Appeal No. 165 of 1964Judgment pronounced on November 10, 1964; Since reported at [1965] 16 S.T.C. 231), we dismiss the appeal with costs.By the Court
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State of Karnataka Vs. M. Muniswamy | This appeal by the State of Karnataka is against the judgment of the High Court by which the respondent was acquitted of the offences under the Prevention of Corruption Act, 1947 besides Sections 420 and 471 of the Indian Penal Code. The respondent was employed as Head Guard in the Security Department of Ashoka Hotel, Bangalore. He is alleged to have concocted some bills for supporting a bogus claim for medical reimbursement on the pretension that his son Raja was treated in a hospital. The Special Court established under the Prevention of Corruption Act tried the case and found him guilty and convicted him and sentenced him to rigorous imprisonment for 2 years each under various counts. When he filed an appeal before the High Court a learned Single Judge mainly considered the question whether the respondent was a public servant falling within the ambit of Section 21 of the Indian Penal Code. Learned Single Judge found that evidence in the case is totally insufficient for holding that Ashoka Hotel or Indian Tourism Development Corporation (of which Ashoka Hotel is a unit) was a government company. Accordingly the High Court found that the whole trial was without jurisdiction before the Special Court. It is unnecessary to extract Section 21 IPC either in its entirety or the "twelfth" clause of it which alone was found relevant as for this case. If Indian Tourism Development Corporation was not shown to be a government company, an employee of Ashoka Hotel cannot become a public servant falling within the purview of Section 21 IPC. In this particular case no document has been produced to show that Indian Tourism Development Corporation was a government company. PW 16, the General Manager of Ashoka Hotel did not say that ITDC was a government company. All that he said was that it was a corporation created under the Companies Act. If PW 16 had further said that the Government held more than 50% of the shares of that Company the Court could perhaps have come to the conclusion that, even in spite of a specific statement made by the witness, the Corporation was a government company. As we have checked up the evidence of PW 16 we have noticed that the witnesses had not stated anything about that crucial aspect. It is important in this context to point out that even when the respondent was questioned under Section 313 of the Code of Criminal Procedure no question could be put by the court regarding the status of the Corporation as a government company. Due to paucity of evidence in this case we are unable to disturb the finding of the learned Single Judge of the High Court that the prosecution failed to establish that ITDC was a government company. It is unnecessary for us to go into the other aspects of the evidence. We make it clear that the decision made by the learned Single Judge in this particular case will not debar ITDC from establishing in any other case that it is a government company. | 0[ds]In this particular case no document has been produced to show that Indian Tourism Development Corporation was a government company. PW 16, the General Manager of Ashoka Hotel did not say that ITDC was a government company. All that he said was that it was a corporation created under the Companies Act. If PW 16 had further said that the Government held more than 50% of the shares of that Company the Court could perhaps have come to the conclusion that, even in spite of a specific statement made by the witness, the Corporation was a government company. As we have checked up the evidence of PW 16 we have noticed that the witnesses had not stated anything about that crucial aspect. It is important in this context to point out that even when the respondent was questioned under Section 313 of the Code of Criminal Procedure no question could be put by the court regarding the status of the Corporation as a government companyDue to paucity of evidence in this case we are unable to disturb the finding of the learned Single Judge of the High Court that the prosecution failed to establish that ITDC was a government company. It is unnecessary for us to go into the other aspects of the evidence. We make it clear that the decision made by the learned Single Judge in this particular case will not debar ITDC from establishing in any other case that it is a government company. | 0 | 538 | 263 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
This appeal by the State of Karnataka is against the judgment of the High Court by which the respondent was acquitted of the offences under the Prevention of Corruption Act, 1947 besides Sections 420 and 471 of the Indian Penal Code. The respondent was employed as Head Guard in the Security Department of Ashoka Hotel, Bangalore. He is alleged to have concocted some bills for supporting a bogus claim for medical reimbursement on the pretension that his son Raja was treated in a hospital. The Special Court established under the Prevention of Corruption Act tried the case and found him guilty and convicted him and sentenced him to rigorous imprisonment for 2 years each under various counts. When he filed an appeal before the High Court a learned Single Judge mainly considered the question whether the respondent was a public servant falling within the ambit of Section 21 of the Indian Penal Code. Learned Single Judge found that evidence in the case is totally insufficient for holding that Ashoka Hotel or Indian Tourism Development Corporation (of which Ashoka Hotel is a unit) was a government company. Accordingly the High Court found that the whole trial was without jurisdiction before the Special Court. It is unnecessary to extract Section 21 IPC either in its entirety or the "twelfth" clause of it which alone was found relevant as for this case. If Indian Tourism Development Corporation was not shown to be a government company, an employee of Ashoka Hotel cannot become a public servant falling within the purview of Section 21 IPC. In this particular case no document has been produced to show that Indian Tourism Development Corporation was a government company. PW 16, the General Manager of Ashoka Hotel did not say that ITDC was a government company. All that he said was that it was a corporation created under the Companies Act. If PW 16 had further said that the Government held more than 50% of the shares of that Company the Court could perhaps have come to the conclusion that, even in spite of a specific statement made by the witness, the Corporation was a government company. As we have checked up the evidence of PW 16 we have noticed that the witnesses had not stated anything about that crucial aspect. It is important in this context to point out that even when the respondent was questioned under Section 313 of the Code of Criminal Procedure no question could be put by the court regarding the status of the Corporation as a government company. Due to paucity of evidence in this case we are unable to disturb the finding of the learned Single Judge of the High Court that the prosecution failed to establish that ITDC was a government company. It is unnecessary for us to go into the other aspects of the evidence. We make it clear that the decision made by the learned Single Judge in this particular case will not debar ITDC from establishing in any other case that it is a government company.
### Response:
0
### Explanation:
In this particular case no document has been produced to show that Indian Tourism Development Corporation was a government company. PW 16, the General Manager of Ashoka Hotel did not say that ITDC was a government company. All that he said was that it was a corporation created under the Companies Act. If PW 16 had further said that the Government held more than 50% of the shares of that Company the Court could perhaps have come to the conclusion that, even in spite of a specific statement made by the witness, the Corporation was a government company. As we have checked up the evidence of PW 16 we have noticed that the witnesses had not stated anything about that crucial aspect. It is important in this context to point out that even when the respondent was questioned under Section 313 of the Code of Criminal Procedure no question could be put by the court regarding the status of the Corporation as a government companyDue to paucity of evidence in this case we are unable to disturb the finding of the learned Single Judge of the High Court that the prosecution failed to establish that ITDC was a government company. It is unnecessary for us to go into the other aspects of the evidence. We make it clear that the decision made by the learned Single Judge in this particular case will not debar ITDC from establishing in any other case that it is a government company.
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State Of Mysore Etc Vs. M. L. Nagade And Gadag & Ors | assessee will have full opportunity to vindicate his stand. It should not be overlooked that the land revenue is a tax and the validity of the taxing statute has to be determined keeping in view the fact that in the matter of taxation, the court allows wide area of picking and choosing and the slab system. We are therefore, of the opinion that there was sufficient guideline to govern the discretion of the Revenue Officer and the rule could not be struck down on the ground that it confers wide arbitrary, uncanalised discretionary power uncontrolled by any guidelines.24. A very feeble attempt was made to urge that there was excessive delegation of essential legislative functions to the executive giving it the power not only to enact the rule but to amend it so as to very the N. A. assessment. Section 50 clearly confers power on the State legislature to levy assessment and when the land is diverted to a use other than agriculture, the legislature conferred the power to levy N. A. assessment. Elaborate provision has been made for levying assessment. Section 172 conferred power to enact rules for giving effect to the provision of the Act and the guideline was provided as hereinabove indicated. Therefore, we are not impressed by the submission that in this case the legislature was guilty of delegating its essential legislative functions in favour of the executive.Re. C. A. Nos. 1407 to 1413 of 1970 :25. In this group of appeals, vires of amended Rule 81 of the Bombay Land Revenue Rules was questioned on the same identical grounds and the challenge must fail for the same reasons. We may however, briefly point out the scheme of the relevant Act and the Rules governing this case.26. Bombay Land Revenue Act was enacted in the year 1879 to consolidate and amend law relating to Revenue Officers and to the assessment and recovery of land revenue and other matters connected with the Land Revenue Administration. Section 48 confers power to levy and assess the land revenue with reference to the use of the land - (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building. Chapter VIII includes provision for surveys, assessment and settlements of land revenue. Chapter VIII-A makes further provisions for assessment and settlement of land revenue on agricultural land. Chapter XI makes detailed provision for the procedure to be followed by the Revenue Officer while discharging their duties and carrying out the functions imposed by the Code. Chapter XIII provides for appeals and revisions against the orders for the Revenue Officer. Section 214 confers power on the State Government to make rules not inconsistent with the provisions of the Act to carry out the purpose and object thereof and for the guidance of all persons in matters connected with the enforcement of the Act. Armed with this power, Lane Revenue Rules, 1951 were enacted. Chapter XIV headed imposition and revision of non-agricultural assessment makes detailed provisions for assessment and levy of N. A. assessment. Rule 80 confers power for alteration of assessment when land assessed or held for agricultural purpose if used for agricultural purpose if used for non-agricultural purpose. Rule 80-A confers power for revision of N. A. assessment on the expiry of the period for which assessment on any land was assessed and levied. Rule 81 provides for ordinary rates of N. A. assessment. It was amended and the validity of the amended rule is in question. Floor and ceiling rates vary from area to area demarcated on the basis of population and it is further provided that in fixing the rates within floor and the ceiling, due regard shall be had to the general level of the value of the lands in the locality used for non-agricultural purposes. Rule 82 makes detailed provision for the rate of non-agricultural assessment to be determined in accordance with that provision where special rate of non-agricultural assessment is in force. Where N. A. assessment is levies at an ordinary rate, the Commissioner before determining the rate at which N. A. assessment will be levied on any particular plot has by notification to divide the villages, towns and cities in each district in his division to which a standard rate under Rule 82 has not been extended into two classes. Even while assessing N. A. assessment, the Commissioner has to keep in view the level of land in the locality used for non-agricultural purposes. In our opinion, both the Act and Rules thus provide for sufficient guidelines, and it cannot be said that the Commissioner enjoys wide arbitrary discretionary power. The discretion has to operate within the floor and the ceiling; the yardstick is the value of the land used for non-agricultural purposes in the locality, the area has to be divided village-wise, city-wise and overall what is being assessed is land revenue because N. A. assessment is nonetheless land revenue. In our opinion, the High Court was in error in striking down the provision on the ground that the Commissioner enjoyed wide arbitrary discretion uncontrolled by any guidelines. The discretion is not only controlled but there is sufficient guideline in the Act and the Rules and therefore, the High Court was in error in striking down the amended Rule 81.27. It was in passing urged that there is no provision for notice before N. A. assessment is levied. We would expect revenue authority ordinarily to hear the person affected by the order levying N. A. assessment or at the time of its appeal or revision, but on this count the demand cannot be struck down because when a demand is served, it can be objected to and the decision is appealable. It cannot be said that the Rule would be bad as it does not inhere the principles of natural justice.28. The decisions of the High Court were not sought to be supported on any other ground. Accordingly, these appeals must succeed. | 1[ds]23. The High Court in our opinion unfortunately fell into an error in holding that Rule 71 allowed a wide margin to the Revenue Officers in the matter of determining the special assessment to be levied on land used for non-agricultural purpose. The High Court failed to notice that area within which the discretion of the Revenue Officer can operate is circumscribed both by the floor and ceiling fixed and while determining the quantum of assessment, the revenue officer has to bear in mind the use to which land is put as also the profit derived from the use of the land. The order made by the Revenue Officer is appealable. Now when a demand is raised, it can always be controverted under the various provisions of the relevant rules and the concerned assessee will have full opportunity to vindicate his stand. It should not be overlooked that the land revenue is a tax and the validity of the taxing statute has to be determined keeping in view the fact that in the matter of taxation, the court allows wide area of picking and choosing and the slab system. We are therefore, of the opinion that there was sufficient guideline to govern the discretion of the Revenue Officer and the rule could not be struck down on the ground that it confers wide arbitrary, uncanalised discretionary power uncontrolled by any guidelines.Bombay Land Revenue Act was enacted in the year 1879 to consolidate and amend law relating to Revenue Officers and to the assessment and recovery of land revenue and other matters connected with the Land Revenue Administration. Section 48 confers power to levy and assess the land revenue with reference to the use of the land - (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building. Chapter VIII includes provision for surveys, assessment and settlements of land revenue. Chapter VIII-A makes further provisions for assessment and settlement of land revenue on agricultural land. Chapter XI makes detailed provision for the procedure to be followed by the Revenue Officer while discharging their duties and carrying out the functions imposed by the Code. Chapter XIII provides for appeals and revisions against the orders for the Revenue Officer. Section 214 confers power on the State Government to make rules not inconsistent with the provisions of the Act to carry out the purpose and object thereof and for the guidance of all persons in matters connected with the enforcement of the Act. Armed with this power, Lane Revenue Rules, 1951 were enacted. Chapter XIV headed imposition and revision of non-agricultural assessment makes detailed provisions for assessment and levy of N. A. assessment. Rule 80 confers power for alteration of assessment when land assessed or held for agricultural purpose if used for agricultural purpose if used for non-agricultural purpose. Rule 80-A confers power for revision of N. A. assessment on the expiry of the period for which assessment on any land was assessed and levied. Rule 81 provides for ordinary rates of N. A. assessment. It was amended and the validity of the amended rule is in question. Floor and ceiling rates vary from area to area demarcated on the basis of population and it is further provided that in fixing the rates within floor and the ceiling, due regard shall be had to the general level of the value of the lands in the locality used for non-agricultural purposes. Rule 82 makes detailed provision for the rate of non-agricultural assessment to be determined in accordance with that provision where special rate of non-agricultural assessment is in force. Where N. A. assessment is levies at an ordinary rate, the Commissioner before determining the rate at which N. A. assessment will be levied on any particular plot has by notification to divide the villages, towns and cities in each district in his division to which a standard rate under Rule 82 has not been extended into two classes. Even while assessing N. A. assessment, the Commissioner has to keep in view the level of land in the locality used for non-agricultural purposes. In our opinion, both the Act and Rules thus provide for sufficient guidelines, and it cannot be said that the Commissioner enjoys wide arbitrary discretionary power. The discretion has to operate within the floor and the ceiling; the yardstick is the value of the land used for non-agricultural purposes in the locality, the area has to be divided village-wise, city-wise and overall what is being assessed is land revenue because N. A. assessment is nonetheless land revenue. In our opinion, the High Court was in error in striking down the provision on the ground that the Commissioner enjoyed wide arbitrary discretion uncontrolled by any guidelines. The discretion is not only controlled but there is sufficient guideline in the Act and the Rules and therefore, the High Court was in error in striking down the amended Rule 81.27. It was in passing urged that there is no provision for notice before N. A. assessment is levied. We would expect revenue authority ordinarily to hear the person affected by the order levying N. A. assessment or at the time of its appeal or revision, but on this count the demand cannot be struck down because when a demand is served, it can be objected to and the decision is appealable. It cannot be said that the Rule would be bad as it does not inhere the principles of natural justice.28. The decisions of the High Court were not sought to be supported on any other ground. Accordingly, these appeals must succeed. | 1 | 5,060 | 1,007 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
assessee will have full opportunity to vindicate his stand. It should not be overlooked that the land revenue is a tax and the validity of the taxing statute has to be determined keeping in view the fact that in the matter of taxation, the court allows wide area of picking and choosing and the slab system. We are therefore, of the opinion that there was sufficient guideline to govern the discretion of the Revenue Officer and the rule could not be struck down on the ground that it confers wide arbitrary, uncanalised discretionary power uncontrolled by any guidelines.24. A very feeble attempt was made to urge that there was excessive delegation of essential legislative functions to the executive giving it the power not only to enact the rule but to amend it so as to very the N. A. assessment. Section 50 clearly confers power on the State legislature to levy assessment and when the land is diverted to a use other than agriculture, the legislature conferred the power to levy N. A. assessment. Elaborate provision has been made for levying assessment. Section 172 conferred power to enact rules for giving effect to the provision of the Act and the guideline was provided as hereinabove indicated. Therefore, we are not impressed by the submission that in this case the legislature was guilty of delegating its essential legislative functions in favour of the executive.Re. C. A. Nos. 1407 to 1413 of 1970 :25. In this group of appeals, vires of amended Rule 81 of the Bombay Land Revenue Rules was questioned on the same identical grounds and the challenge must fail for the same reasons. We may however, briefly point out the scheme of the relevant Act and the Rules governing this case.26. Bombay Land Revenue Act was enacted in the year 1879 to consolidate and amend law relating to Revenue Officers and to the assessment and recovery of land revenue and other matters connected with the Land Revenue Administration. Section 48 confers power to levy and assess the land revenue with reference to the use of the land - (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building. Chapter VIII includes provision for surveys, assessment and settlements of land revenue. Chapter VIII-A makes further provisions for assessment and settlement of land revenue on agricultural land. Chapter XI makes detailed provision for the procedure to be followed by the Revenue Officer while discharging their duties and carrying out the functions imposed by the Code. Chapter XIII provides for appeals and revisions against the orders for the Revenue Officer. Section 214 confers power on the State Government to make rules not inconsistent with the provisions of the Act to carry out the purpose and object thereof and for the guidance of all persons in matters connected with the enforcement of the Act. Armed with this power, Lane Revenue Rules, 1951 were enacted. Chapter XIV headed imposition and revision of non-agricultural assessment makes detailed provisions for assessment and levy of N. A. assessment. Rule 80 confers power for alteration of assessment when land assessed or held for agricultural purpose if used for agricultural purpose if used for non-agricultural purpose. Rule 80-A confers power for revision of N. A. assessment on the expiry of the period for which assessment on any land was assessed and levied. Rule 81 provides for ordinary rates of N. A. assessment. It was amended and the validity of the amended rule is in question. Floor and ceiling rates vary from area to area demarcated on the basis of population and it is further provided that in fixing the rates within floor and the ceiling, due regard shall be had to the general level of the value of the lands in the locality used for non-agricultural purposes. Rule 82 makes detailed provision for the rate of non-agricultural assessment to be determined in accordance with that provision where special rate of non-agricultural assessment is in force. Where N. A. assessment is levies at an ordinary rate, the Commissioner before determining the rate at which N. A. assessment will be levied on any particular plot has by notification to divide the villages, towns and cities in each district in his division to which a standard rate under Rule 82 has not been extended into two classes. Even while assessing N. A. assessment, the Commissioner has to keep in view the level of land in the locality used for non-agricultural purposes. In our opinion, both the Act and Rules thus provide for sufficient guidelines, and it cannot be said that the Commissioner enjoys wide arbitrary discretionary power. The discretion has to operate within the floor and the ceiling; the yardstick is the value of the land used for non-agricultural purposes in the locality, the area has to be divided village-wise, city-wise and overall what is being assessed is land revenue because N. A. assessment is nonetheless land revenue. In our opinion, the High Court was in error in striking down the provision on the ground that the Commissioner enjoyed wide arbitrary discretion uncontrolled by any guidelines. The discretion is not only controlled but there is sufficient guideline in the Act and the Rules and therefore, the High Court was in error in striking down the amended Rule 81.27. It was in passing urged that there is no provision for notice before N. A. assessment is levied. We would expect revenue authority ordinarily to hear the person affected by the order levying N. A. assessment or at the time of its appeal or revision, but on this count the demand cannot be struck down because when a demand is served, it can be objected to and the decision is appealable. It cannot be said that the Rule would be bad as it does not inhere the principles of natural justice.28. The decisions of the High Court were not sought to be supported on any other ground. Accordingly, these appeals must succeed.
### Response:
1
### Explanation:
23. The High Court in our opinion unfortunately fell into an error in holding that Rule 71 allowed a wide margin to the Revenue Officers in the matter of determining the special assessment to be levied on land used for non-agricultural purpose. The High Court failed to notice that area within which the discretion of the Revenue Officer can operate is circumscribed both by the floor and ceiling fixed and while determining the quantum of assessment, the revenue officer has to bear in mind the use to which land is put as also the profit derived from the use of the land. The order made by the Revenue Officer is appealable. Now when a demand is raised, it can always be controverted under the various provisions of the relevant rules and the concerned assessee will have full opportunity to vindicate his stand. It should not be overlooked that the land revenue is a tax and the validity of the taxing statute has to be determined keeping in view the fact that in the matter of taxation, the court allows wide area of picking and choosing and the slab system. We are therefore, of the opinion that there was sufficient guideline to govern the discretion of the Revenue Officer and the rule could not be struck down on the ground that it confers wide arbitrary, uncanalised discretionary power uncontrolled by any guidelines.Bombay Land Revenue Act was enacted in the year 1879 to consolidate and amend law relating to Revenue Officers and to the assessment and recovery of land revenue and other matters connected with the Land Revenue Administration. Section 48 confers power to levy and assess the land revenue with reference to the use of the land - (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building. Chapter VIII includes provision for surveys, assessment and settlements of land revenue. Chapter VIII-A makes further provisions for assessment and settlement of land revenue on agricultural land. Chapter XI makes detailed provision for the procedure to be followed by the Revenue Officer while discharging their duties and carrying out the functions imposed by the Code. Chapter XIII provides for appeals and revisions against the orders for the Revenue Officer. Section 214 confers power on the State Government to make rules not inconsistent with the provisions of the Act to carry out the purpose and object thereof and for the guidance of all persons in matters connected with the enforcement of the Act. Armed with this power, Lane Revenue Rules, 1951 were enacted. Chapter XIV headed imposition and revision of non-agricultural assessment makes detailed provisions for assessment and levy of N. A. assessment. Rule 80 confers power for alteration of assessment when land assessed or held for agricultural purpose if used for agricultural purpose if used for non-agricultural purpose. Rule 80-A confers power for revision of N. A. assessment on the expiry of the period for which assessment on any land was assessed and levied. Rule 81 provides for ordinary rates of N. A. assessment. It was amended and the validity of the amended rule is in question. Floor and ceiling rates vary from area to area demarcated on the basis of population and it is further provided that in fixing the rates within floor and the ceiling, due regard shall be had to the general level of the value of the lands in the locality used for non-agricultural purposes. Rule 82 makes detailed provision for the rate of non-agricultural assessment to be determined in accordance with that provision where special rate of non-agricultural assessment is in force. Where N. A. assessment is levies at an ordinary rate, the Commissioner before determining the rate at which N. A. assessment will be levied on any particular plot has by notification to divide the villages, towns and cities in each district in his division to which a standard rate under Rule 82 has not been extended into two classes. Even while assessing N. A. assessment, the Commissioner has to keep in view the level of land in the locality used for non-agricultural purposes. In our opinion, both the Act and Rules thus provide for sufficient guidelines, and it cannot be said that the Commissioner enjoys wide arbitrary discretionary power. The discretion has to operate within the floor and the ceiling; the yardstick is the value of the land used for non-agricultural purposes in the locality, the area has to be divided village-wise, city-wise and overall what is being assessed is land revenue because N. A. assessment is nonetheless land revenue. In our opinion, the High Court was in error in striking down the provision on the ground that the Commissioner enjoyed wide arbitrary discretion uncontrolled by any guidelines. The discretion is not only controlled but there is sufficient guideline in the Act and the Rules and therefore, the High Court was in error in striking down the amended Rule 81.27. It was in passing urged that there is no provision for notice before N. A. assessment is levied. We would expect revenue authority ordinarily to hear the person affected by the order levying N. A. assessment or at the time of its appeal or revision, but on this count the demand cannot be struck down because when a demand is served, it can be objected to and the decision is appealable. It cannot be said that the Rule would be bad as it does not inhere the principles of natural justice.28. The decisions of the High Court were not sought to be supported on any other ground. Accordingly, these appeals must succeed.
|
Royal Western India Turf Club Ltd Vs. E.S.I. Corporation & Others | in which the casual workers were employed by the respondent company, namely, Shri Shakthi Textiles Mills Pvt. Ltd., not being the work of the factory or incidental or preliminary to or connected with the work of the factory, such workers cannot be employees within the meaning of Section 2(9) of the Act. The contention of the learned counsel is that the work of the factory being “weaving”, an employee within the meaning of Section 2(9) must be employed on any work incidental or preliminary to or connected with the work of weaving that is carried on in the mill or factory. Counsel submits that the work of construction of factory buildings cannot be said to be an activity or operation incidental to or connected with the work of the factory, which is weaving. Mr D.N. Gupta, learned counsel appearing on behalf of the respondent companies in the other cases adopts the contention of Dr. Chitaley and submits that the workers employed for the construction of the factory buildings do not come within the purview of the definition of “employee” under Section 2(9) of the Act.” In view of the aforesaid decision it is apparent that the submission raised by Royal Turf Club that casual workers are not covered under the ambit of ESI Act is too tenuous for its acceptance. 12. Mr. Cama, learned senior counsel has pressed into service a decision of this Court in Employees’ State Insurance Corpn. v. Premier Clay Products (1994) Supp. 3 SCC 567. In the said case the work itself was of a sporadic nature. The coolies were available for work to others and on the very day worked for several others who also engaged them for loading and unloading of goods. Thus it was held that coolies could not be said to be casual workmen under the ESI Act. The said decision has absolutely no application to the fact situation of the instant case where work is not sporadic in nature. The employees’ work for the day of racing which is perennial activity of Royal Turf Club and in view of the provisions of the Act, Rules, Regulations and notification dated 18.9.1978, there is no doubt that such employees are covered and consequently are entitled for benefit of the Act. 13. Coming to the submission that the ESI Corporation should be held bound by the consent terms, the submission is factually incorrect, misconceived, legally untenable and otherwise also devoid of the substance. In Application (ESI) No.16/1976 filed by the Turf Club, the ESI Corporation agreed on the basis of Inspection Report dated 29.11.1975 and in Memorandum dated 14.4.1976 it was mentioned that employees of the Turf Club in the electrical and mechanical workshop, factory division, general department - motor-garage (factory division), security department, carpentry shop, personnel department and accounts department would be covered under the ESI Act with effect from 28.1.1968. It was agreed that such employees of the Turf Club have already been covered and shall continue to be covered as before and the employees of Racing Administration Department, casual labour engaged on race track, temporary staff engaged on race days for issue of tickets/dividends were not covered. In the aforesaid case the period involved was as specified in the notification dated 26.2.1976 which was prior and not related to the period in question 1978-79 to 1982-83 involved in C.A. No.49/2006 and in other appeals also the period is subsequent thereto. After issuance of the notification dated 18.9.1978 by the Government of Maharashtra, the remaining departments of Turf Club which were left out earlier were specifically covered under the purview of the ESI Act. Thus, the demand in the instant case is based upon the notification dated 18.9.1978 which left no room to entertain any doubt that the establishments of the aforesaid department in question were also covered under the ESI Act. Thus, no benefit can be derived by the consent terms which related to the earlier period when notification dated 18.9.1978 had not been issued. Notification has statutory force and agreement cannot supersede it. It is also clear that several departments of race club were covered under the notification issued in 1968. Thus, the submission raised on the basis of consent terms is hereby rejected. 14. Coming to the appeal preferred by the ESI Corporation raising question that the payment should have been ordered with effect from 1978-79 onwards instead of 1987 as in view of notification dated 18.9.1978, there was no room to doubt that departments in question of the Turf Club were also covered under ESI Act. In our opinion, the notification of 1978 is clear and has to be given full effect, for earlier period also the consent terms indicated that various other departments of Turf Club were covered under the notification of 1968. Reliance on the decision of this Court in Hyderabad Race Club case (supra) so as to waive the contribution from 1975 to 1986, is not available as in the instant case there was no doubt as to applicability of ESI Act in view of the specific notification issued in 1978. The provisions of ESI Act were applied to various departments of Turf Club w.e.f. 1968. The decision in Hyderabad Race Club case (supra) turned on its own different factual matrix. In this case, it was clear from 1968 itself that Turf Club was covered under ESI Act as is apparent from consent terms. The notification dated 18.9.1978 included other left out departments of race club. The provisions of ESI Act were complied with by Turf Club w.e.f. 1968. The High Court on the facts of the case has erred in quashing the demand for the contribution with effect from 1978 till 1987.15. In our opinion, the Turf Club is liable to make the contribution as per notification dated 18.9.1978 along with interest at such rate as provided in the Act and the Rules till the date of actual payment. Let the amount be contributed within a period of three months from today. Consequently, the | 1[ds]. In our opinion, the notification of 1978 is clear and has to be given full effect, for earlier period also the consent terms indicated that various other departments of Turf Club were covered under the notification of 1968. Reliance on the decision of this Court in Hyderabad Race Club case (supra) so as to waive the contribution from 1975 to 1986, is not available as in the instant case there was no doubt as to applicability of ESI Act in view of the specific notification issued in 1978. The provisions of ESI Act were applied to various departments of Turf Club w.e.f. 1968. The decision in Hyderabad Race Club case (supra) turned on its own different factual matrix. In this case, it was clear from 1968 itself that Turf Club was covered under ESI Act as is apparent from consent terms. The notification dated 18.9.1978 included other left out departments of race club. The provisions of ESI Act were complied with by Turf Club w.e.f. 1968. The High Court on the facts of the case has erred in quashing the demand for the contribution with effect from 1978 till 1987.15. In our opinion, the Turf Club is liable to make the contribution as per notification dated 18.9.1978 along with interest at such rate as provided in the Act and the Rules till the date of actual payment. Let the amount be contributed within a period of three months from today. | 1 | 4,223 | 266 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
in which the casual workers were employed by the respondent company, namely, Shri Shakthi Textiles Mills Pvt. Ltd., not being the work of the factory or incidental or preliminary to or connected with the work of the factory, such workers cannot be employees within the meaning of Section 2(9) of the Act. The contention of the learned counsel is that the work of the factory being “weaving”, an employee within the meaning of Section 2(9) must be employed on any work incidental or preliminary to or connected with the work of weaving that is carried on in the mill or factory. Counsel submits that the work of construction of factory buildings cannot be said to be an activity or operation incidental to or connected with the work of the factory, which is weaving. Mr D.N. Gupta, learned counsel appearing on behalf of the respondent companies in the other cases adopts the contention of Dr. Chitaley and submits that the workers employed for the construction of the factory buildings do not come within the purview of the definition of “employee” under Section 2(9) of the Act.” In view of the aforesaid decision it is apparent that the submission raised by Royal Turf Club that casual workers are not covered under the ambit of ESI Act is too tenuous for its acceptance. 12. Mr. Cama, learned senior counsel has pressed into service a decision of this Court in Employees’ State Insurance Corpn. v. Premier Clay Products (1994) Supp. 3 SCC 567. In the said case the work itself was of a sporadic nature. The coolies were available for work to others and on the very day worked for several others who also engaged them for loading and unloading of goods. Thus it was held that coolies could not be said to be casual workmen under the ESI Act. The said decision has absolutely no application to the fact situation of the instant case where work is not sporadic in nature. The employees’ work for the day of racing which is perennial activity of Royal Turf Club and in view of the provisions of the Act, Rules, Regulations and notification dated 18.9.1978, there is no doubt that such employees are covered and consequently are entitled for benefit of the Act. 13. Coming to the submission that the ESI Corporation should be held bound by the consent terms, the submission is factually incorrect, misconceived, legally untenable and otherwise also devoid of the substance. In Application (ESI) No.16/1976 filed by the Turf Club, the ESI Corporation agreed on the basis of Inspection Report dated 29.11.1975 and in Memorandum dated 14.4.1976 it was mentioned that employees of the Turf Club in the electrical and mechanical workshop, factory division, general department - motor-garage (factory division), security department, carpentry shop, personnel department and accounts department would be covered under the ESI Act with effect from 28.1.1968. It was agreed that such employees of the Turf Club have already been covered and shall continue to be covered as before and the employees of Racing Administration Department, casual labour engaged on race track, temporary staff engaged on race days for issue of tickets/dividends were not covered. In the aforesaid case the period involved was as specified in the notification dated 26.2.1976 which was prior and not related to the period in question 1978-79 to 1982-83 involved in C.A. No.49/2006 and in other appeals also the period is subsequent thereto. After issuance of the notification dated 18.9.1978 by the Government of Maharashtra, the remaining departments of Turf Club which were left out earlier were specifically covered under the purview of the ESI Act. Thus, the demand in the instant case is based upon the notification dated 18.9.1978 which left no room to entertain any doubt that the establishments of the aforesaid department in question were also covered under the ESI Act. Thus, no benefit can be derived by the consent terms which related to the earlier period when notification dated 18.9.1978 had not been issued. Notification has statutory force and agreement cannot supersede it. It is also clear that several departments of race club were covered under the notification issued in 1968. Thus, the submission raised on the basis of consent terms is hereby rejected. 14. Coming to the appeal preferred by the ESI Corporation raising question that the payment should have been ordered with effect from 1978-79 onwards instead of 1987 as in view of notification dated 18.9.1978, there was no room to doubt that departments in question of the Turf Club were also covered under ESI Act. In our opinion, the notification of 1978 is clear and has to be given full effect, for earlier period also the consent terms indicated that various other departments of Turf Club were covered under the notification of 1968. Reliance on the decision of this Court in Hyderabad Race Club case (supra) so as to waive the contribution from 1975 to 1986, is not available as in the instant case there was no doubt as to applicability of ESI Act in view of the specific notification issued in 1978. The provisions of ESI Act were applied to various departments of Turf Club w.e.f. 1968. The decision in Hyderabad Race Club case (supra) turned on its own different factual matrix. In this case, it was clear from 1968 itself that Turf Club was covered under ESI Act as is apparent from consent terms. The notification dated 18.9.1978 included other left out departments of race club. The provisions of ESI Act were complied with by Turf Club w.e.f. 1968. The High Court on the facts of the case has erred in quashing the demand for the contribution with effect from 1978 till 1987.15. In our opinion, the Turf Club is liable to make the contribution as per notification dated 18.9.1978 along with interest at such rate as provided in the Act and the Rules till the date of actual payment. Let the amount be contributed within a period of three months from today. Consequently, the
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. In our opinion, the notification of 1978 is clear and has to be given full effect, for earlier period also the consent terms indicated that various other departments of Turf Club were covered under the notification of 1968. Reliance on the decision of this Court in Hyderabad Race Club case (supra) so as to waive the contribution from 1975 to 1986, is not available as in the instant case there was no doubt as to applicability of ESI Act in view of the specific notification issued in 1978. The provisions of ESI Act were applied to various departments of Turf Club w.e.f. 1968. The decision in Hyderabad Race Club case (supra) turned on its own different factual matrix. In this case, it was clear from 1968 itself that Turf Club was covered under ESI Act as is apparent from consent terms. The notification dated 18.9.1978 included other left out departments of race club. The provisions of ESI Act were complied with by Turf Club w.e.f. 1968. The High Court on the facts of the case has erred in quashing the demand for the contribution with effect from 1978 till 1987.15. In our opinion, the Turf Club is liable to make the contribution as per notification dated 18.9.1978 along with interest at such rate as provided in the Act and the Rules till the date of actual payment. Let the amount be contributed within a period of three months from today.
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Ram Janki Devi & Anr Vs. M/S. Juggilal Kamlapat | documents are shown to the witness in cross-examination. Secondly, both Padampat Singhania and Gopi Kishan Saraugi spoke of the proper maintenance and keeping of books of account and that it was not possible to arrange the presence of the writer of the entry. Suggestion of tampering is a serious one. The original entries were called for from the High Court. We had occasion to look into the originals. We are in agreement with the High Court that the suggestion of fabrication is utterly unmeritorius. The words deposit karaya appear without any doubt to have been written at the same time as the rest of the writing. It is in evidence that the reference to the page of the Panna under that entry was written later inasmuch as the page of the Panna was put on when the Panna book was written.16. The most important documentary evidence of the appellant namely, their book of account was not produced. These books of the appellant would have shown how they treated the transaction, namely, whether it was a case of deposit or loan. The irresistible inference from the non-production of the books of the appellant would arise that they would have supported the respondents case and that is why they were not produced. The appellants contention that the background of the transaction was mercantile loan, would be a mere conjuncture than a conclusion to be arrived at. The financial transactions between the respondent and Lakshmi Ratan Cotton Mills were running accounts. It would be more consistent to hold that by allowing India Supplies a deposit of Rs. 4, 00, 000 India Supplies would be relieved of the situation of repaying the money immediately. It is precisely because of the then inability of India Supplies to repay Lakshmi Ratan Cotton Mills that the parties resorted to the mode of having the use of the money by way of deposit. The transaction was between the appellant, the respondent and Lakshmi Ratan Cotton Mills. All figured in the transaction. A mere loan of Rs. 4, 00, 000 would not have sufficed the needs of the appellant who were then unable to pay the dues of Lakshmi Ratan Cotton Mills.17. Some of the partners of the appellant and the respondent in the year 1942 were common. It would be more explicable and natural course of events that monies would be kept in deposit with the appellant in order to enable them to have financial accommodation without immediate worry of repayment. The mere fact that money in specie was not paid would not be destructive of the case of deposit. The respondent acted as bankers. The way in which the respondent made entries in the pass book of the appellant is consistent with their Roznamcha, Khata and Nakalbahi books. It was not a case of the respondent giving loan to the appellant for the obvious reason that the history of the transactions between the appellant and Lakshmi Ratan Cotton Mills shows that the appellant had to be put on a footing of financial stability by giving the appellant the use of the sum of Rs. 4, 00, 000 for a long time. The absence of any negotiable instrument is significant. A Hundi or a promissory note would have been consistent with the case of a loan. The relationship between the parties, the surrounding circumstances at the time of the transaction, the pecuniary position of the appellant are all overwhelming features to corroborate the oral as well as the documentary evidence of the respondent that the amount was deposited with the appellant.18. The award, dated January 18, 1944, has also a tale to tell. There were disputes between the partners of the various businesses in which the Singhania and Gupta groups were interested. These disputes were before the arbitrators. One of the terms in the award was that the award in respect of Lakshmi Ratan Cotton Mills and India Supplies "do not cover the advances which either party or their separate firms may have made to all or any of them or their moneys which may be in deposit with them and they shall be payable and paid in their usual course". This direction in the award shows that there were advances which were in the nature of deposit and were not covered by the award. The award would have evidentiary value to show as to how the parties treated and understood their financial dealings.19. It is also significant that when the respondent demanded the money by a letter, dated April 27, 1953 (Ex. 7) the appellant in their reply, dated May 5/6, 1953 (Ex. 6) totally denied the claim. The respondent set out all the facts of deposit of the money with the appellant. The appellant never said that it was a case of advancing loan. The non-production of the appellants accounts coupled with the appellants staying away from the witness box indicates the inherent infirmities in the appellants case.20. Counsel for the appellant contended that there was a demand for a part of the amount in the year 1943 because Padampat Singhania said that there was demand in the month of October, 1943 and therefore limitation would start from that date. The view of Calcutta, Bombay and Madras High Courts is that there must be an unqualified demand for the whole sum before the limitation can start. In case of demand for return of the amount deposited. (See Jagendrannath Chakerbutty v. Dinkar Ram, (AIR 1921 Cal 644 .) Motigouri v. Naranji (AIR 1927 Bom 362 .) and Subbaih Chetty and Others v. Visalkshi Achi (AIR 1932 Mad 685 .). That is the correct position in law. Counsel for the appellant did not contend to the contrary in view of the consensus of opinion of the different High Courts. It is also important to bear in mind that a demand in the year 1943 for a part of the amount would not be effective because there were common partners in the firms of the respondent and the appellant. | 1[ds]15. It was suggested to Padampat Singhania that the words "deposit karaya" in the Roznamcha entry were not written at the same sitting. Padampat Singhania denied that. Counsel for the appellant contended that in the absence of Gopi Kishan Jaipuria the account books were not proved. This is unacceptable for two reasons. First, the account books were shown in cross-examination of Padampat Singhania and questions were asked on the same. It is not open to the appellant to complain of lack of proof of account books when the documents are shown to the witness in cross-examination. Secondly, both Padampat Singhania and Gopi Kishan Saraugi spoke of the proper maintenance and keeping of books of account and that it was not possible to arrange the presence of the writer of the entry. Suggestion of tampering is a serious one. The original entries were called for from the High Court. We had occasion to look into the originals. We are in agreement with the High Court that the suggestion of fabrication is utterly unmeritorius. The words deposit karaya appear without any doubt to have been written at the same time as the rest of the writing. It is in evidence that the reference to the page of the Panna under that entry was written later inasmuch as the page of the Panna was put on when the Panna book was written.16. The most important documentary evidence of the appellant namely, their book of account was not produced. These books of the appellant would have shown how they treated the transaction, namely, whether it was a case of deposit or loan. The irresistible inference from the non-production of the books of the appellant would arise that they would have supported the respondents case and that is why they were not produced. The appellants contention that the background of the transaction was mercantile loan, would be a mere conjuncture than a conclusion to be arrived at. The financial transactions between the respondent and Lakshmi Ratan Cotton Mills were running accounts. It would be more consistent to hold that by allowing India Supplies a deposit of Rs. 4, 00, 000 India Supplies would be relieved of the situation of repaying the money immediately. It is precisely because of the then inability of India Supplies to repay Lakshmi Ratan Cotton Mills that the parties resorted to the mode of having the use of the money by way of deposit. The transaction was between the appellant, the respondent and Lakshmi Ratan Cotton Mills. All figured in the transaction. A mere loan of Rs. 4, 00, 000 would not have sufficed the needs of the appellant who were then unable to pay the dues of Lakshmi Ratan Cotton Mills.17. Some of the partners of the appellant and the respondent in the year 1942 were common. It would be more explicable and natural course of events that monies would be kept in deposit with the appellant in order to enable them to have financial accommodation without immediate worry of repayment. The mere fact that money in specie was not paid would not be destructive of the case of deposit. The respondent acted as bankers. The way in which the respondent made entries in the pass book of the appellant is consistent with their Roznamcha, Khata and Nakalbahi books. It was not a case of the respondent giving loan to the appellant for the obvious reason that the history of the transactions between the appellant and Lakshmi Ratan Cotton Mills shows that the appellant had to be put on a footing of financial stability by giving the appellant the use of the sum of Rs. 4, 00, 000 for a long time. The absence of any negotiable instrument is significant. A Hundi or a promissory note would have been consistent with the case of a loan. The relationship between the parties, the surrounding circumstances at the time of the transaction, the pecuniary position of the appellant are all overwhelming features to corroborate the oral as well as the documentary evidence of the respondent that the amount was deposited with the appellant.18. The award, dated January 18, 1944, has also a tale to tell. There were disputes between the partners of the various businesses in which the Singhania and Gupta groups were interested. These disputes were before the arbitrators. One of the terms in the award was that the award in respect of Lakshmi Ratan Cotton Mills and India Supplies "do not cover the advances which either party or their separate firms may have made to all or any of them or their moneys which may be in deposit with them and they shall be payable and paid in their usual course". This direction in the award shows that there were advances which were in the nature of deposit and were not covered by the award. The award would have evidentiary value to show as to how the parties treated and understood their financial dealings.19. It is also significant that when the respondent demanded the money by a letter, dated April 27, 1953 (Ex. 7) the appellant in their reply, dated May 5/6, 1953 (Ex. 6) totally denied the claim. The respondent set out all the facts of deposit of the money with the appellant. The appellant never said that it was a case of advancing loan. The non-production of the appellants accounts coupled with the appellants staying away from the witness box indicates the inherent infirmities in the appellantsview of Calcutta, Bombay and Madras High Courts is that there must be an unqualified demand for the whole sum before the limitation can start. In case of demand for return of the amount deposited. (See Jagendrannath Chakerbutty v. Dinkar Ram, (AIR 1921 Cal 644 .) Motigouri v. Naranji (AIR 1927 Bom 362 .) and Subbaih Chetty and Others v. Visalkshi Achi (AIR 1932 Mad 685 .). That is the correct position in law. Counsel for the appellant did not contend to the contrary in view of the consensus of opinion of the different High Courts. It is also important to bear in mind that a demand in the year 1943 for a part of the amount would not be effective because there were common partners in the firms of the respondent and theintrinsic evidence in the letter is that the sum of Rs. 4, 00, 000 was debited to India Supplies as deposit. The words "debited as deposit" were criticised by counsel for the appellant to be meaningless. Too much precision cannot always be expected in regard to use of foreign language by merchants and traders in their short memorandum. The character of deposit is an inherent impression in the writing. The Roznamcha refers to the letter and is therefore corroborative of the letter and the terms thereof. The letter further shows that the terms were agreed to by the partners of the firm, namely, the partners of India Supplies and of the respondent. The respondents partner Padampat Singhania gave oral evidence and substantiated the terms of the letter and the respondents case. Padampat Singhania was the person on behalf of the respondent who carried on the negotiations. His evidence was therefore important. The appellants did not examine themselves and did not give any evidence challenging the oral testimony of the respondents partner. On the contrary, the correctness of the letter Ex.was accepted by the appellants witness Ram Ratan Gupta the author of the letter.The Roznamcha entry was proved by Gopi Kishan Saraugi a Munim of the plaintiff. The Roznamcha entry was as follows00, 000 India Supply Ke Nam Asoj Badi Chhatt :Lakshmi Ratan Cotton Mill Ki Chithi se apke nam bada deposit karyapannaevidence was that the books were systematically kept on mahajani system in connection with the business. The witness proved the Khata, the Roznamcha and the nakalbahi entries. Inof Gopi Kishan Saraugi it was suggested that the entry under the date September 30, 1942, in the roznamcha was not written at the same time. The suggestion was that there was interpolation of the words "deposit karaya" in the Roznamcha entry. Inof Padampat Singhania questions were asked about the Rokar, Khata, Nakalbahi and Roznamcha entries. Padampat Singhania said that the entry of Rs. 4, 00, 000 was not recorded in the daily cash book but was recorded in the roznamcha. He also said that credit and debit entries were made in the roznamcha. Padampt Singhania said that the entries were made by Gopi Kishan Jaipuria whowas in a dying condition at the time the witness gave evidence. | 1 | 3,449 | 1,553 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
documents are shown to the witness in cross-examination. Secondly, both Padampat Singhania and Gopi Kishan Saraugi spoke of the proper maintenance and keeping of books of account and that it was not possible to arrange the presence of the writer of the entry. Suggestion of tampering is a serious one. The original entries were called for from the High Court. We had occasion to look into the originals. We are in agreement with the High Court that the suggestion of fabrication is utterly unmeritorius. The words deposit karaya appear without any doubt to have been written at the same time as the rest of the writing. It is in evidence that the reference to the page of the Panna under that entry was written later inasmuch as the page of the Panna was put on when the Panna book was written.16. The most important documentary evidence of the appellant namely, their book of account was not produced. These books of the appellant would have shown how they treated the transaction, namely, whether it was a case of deposit or loan. The irresistible inference from the non-production of the books of the appellant would arise that they would have supported the respondents case and that is why they were not produced. The appellants contention that the background of the transaction was mercantile loan, would be a mere conjuncture than a conclusion to be arrived at. The financial transactions between the respondent and Lakshmi Ratan Cotton Mills were running accounts. It would be more consistent to hold that by allowing India Supplies a deposit of Rs. 4, 00, 000 India Supplies would be relieved of the situation of repaying the money immediately. It is precisely because of the then inability of India Supplies to repay Lakshmi Ratan Cotton Mills that the parties resorted to the mode of having the use of the money by way of deposit. The transaction was between the appellant, the respondent and Lakshmi Ratan Cotton Mills. All figured in the transaction. A mere loan of Rs. 4, 00, 000 would not have sufficed the needs of the appellant who were then unable to pay the dues of Lakshmi Ratan Cotton Mills.17. Some of the partners of the appellant and the respondent in the year 1942 were common. It would be more explicable and natural course of events that monies would be kept in deposit with the appellant in order to enable them to have financial accommodation without immediate worry of repayment. The mere fact that money in specie was not paid would not be destructive of the case of deposit. The respondent acted as bankers. The way in which the respondent made entries in the pass book of the appellant is consistent with their Roznamcha, Khata and Nakalbahi books. It was not a case of the respondent giving loan to the appellant for the obvious reason that the history of the transactions between the appellant and Lakshmi Ratan Cotton Mills shows that the appellant had to be put on a footing of financial stability by giving the appellant the use of the sum of Rs. 4, 00, 000 for a long time. The absence of any negotiable instrument is significant. A Hundi or a promissory note would have been consistent with the case of a loan. The relationship between the parties, the surrounding circumstances at the time of the transaction, the pecuniary position of the appellant are all overwhelming features to corroborate the oral as well as the documentary evidence of the respondent that the amount was deposited with the appellant.18. The award, dated January 18, 1944, has also a tale to tell. There were disputes between the partners of the various businesses in which the Singhania and Gupta groups were interested. These disputes were before the arbitrators. One of the terms in the award was that the award in respect of Lakshmi Ratan Cotton Mills and India Supplies "do not cover the advances which either party or their separate firms may have made to all or any of them or their moneys which may be in deposit with them and they shall be payable and paid in their usual course". This direction in the award shows that there were advances which were in the nature of deposit and were not covered by the award. The award would have evidentiary value to show as to how the parties treated and understood their financial dealings.19. It is also significant that when the respondent demanded the money by a letter, dated April 27, 1953 (Ex. 7) the appellant in their reply, dated May 5/6, 1953 (Ex. 6) totally denied the claim. The respondent set out all the facts of deposit of the money with the appellant. The appellant never said that it was a case of advancing loan. The non-production of the appellants accounts coupled with the appellants staying away from the witness box indicates the inherent infirmities in the appellants case.20. Counsel for the appellant contended that there was a demand for a part of the amount in the year 1943 because Padampat Singhania said that there was demand in the month of October, 1943 and therefore limitation would start from that date. The view of Calcutta, Bombay and Madras High Courts is that there must be an unqualified demand for the whole sum before the limitation can start. In case of demand for return of the amount deposited. (See Jagendrannath Chakerbutty v. Dinkar Ram, (AIR 1921 Cal 644 .) Motigouri v. Naranji (AIR 1927 Bom 362 .) and Subbaih Chetty and Others v. Visalkshi Achi (AIR 1932 Mad 685 .). That is the correct position in law. Counsel for the appellant did not contend to the contrary in view of the consensus of opinion of the different High Courts. It is also important to bear in mind that a demand in the year 1943 for a part of the amount would not be effective because there were common partners in the firms of the respondent and the appellant.
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transaction. A mere loan of Rs. 4, 00, 000 would not have sufficed the needs of the appellant who were then unable to pay the dues of Lakshmi Ratan Cotton Mills.17. Some of the partners of the appellant and the respondent in the year 1942 were common. It would be more explicable and natural course of events that monies would be kept in deposit with the appellant in order to enable them to have financial accommodation without immediate worry of repayment. The mere fact that money in specie was not paid would not be destructive of the case of deposit. The respondent acted as bankers. The way in which the respondent made entries in the pass book of the appellant is consistent with their Roznamcha, Khata and Nakalbahi books. It was not a case of the respondent giving loan to the appellant for the obvious reason that the history of the transactions between the appellant and Lakshmi Ratan Cotton Mills shows that the appellant had to be put on a footing of financial stability by giving the appellant the use of the sum of Rs. 4, 00, 000 for a long time. The absence of any negotiable instrument is significant. A Hundi or a promissory note would have been consistent with the case of a loan. The relationship between the parties, the surrounding circumstances at the time of the transaction, the pecuniary position of the appellant are all overwhelming features to corroborate the oral as well as the documentary evidence of the respondent that the amount was deposited with the appellant.18. The award, dated January 18, 1944, has also a tale to tell. There were disputes between the partners of the various businesses in which the Singhania and Gupta groups were interested. These disputes were before the arbitrators. One of the terms in the award was that the award in respect of Lakshmi Ratan Cotton Mills and India Supplies "do not cover the advances which either party or their separate firms may have made to all or any of them or their moneys which may be in deposit with them and they shall be payable and paid in their usual course". This direction in the award shows that there were advances which were in the nature of deposit and were not covered by the award. The award would have evidentiary value to show as to how the parties treated and understood their financial dealings.19. It is also significant that when the respondent demanded the money by a letter, dated April 27, 1953 (Ex. 7) the appellant in their reply, dated May 5/6, 1953 (Ex. 6) totally denied the claim. The respondent set out all the facts of deposit of the money with the appellant. The appellant never said that it was a case of advancing loan. The non-production of the appellants accounts coupled with the appellants staying away from the witness box indicates the inherent infirmities in the appellantsview of Calcutta, Bombay and Madras High Courts is that there must be an unqualified demand for the whole sum before the limitation can start. In case of demand for return of the amount deposited. (See Jagendrannath Chakerbutty v. Dinkar Ram, (AIR 1921 Cal 644 .) Motigouri v. Naranji (AIR 1927 Bom 362 .) and Subbaih Chetty and Others v. Visalkshi Achi (AIR 1932 Mad 685 .). That is the correct position in law. Counsel for the appellant did not contend to the contrary in view of the consensus of opinion of the different High Courts. It is also important to bear in mind that a demand in the year 1943 for a part of the amount would not be effective because there were common partners in the firms of the respondent and theintrinsic evidence in the letter is that the sum of Rs. 4, 00, 000 was debited to India Supplies as deposit. The words "debited as deposit" were criticised by counsel for the appellant to be meaningless. Too much precision cannot always be expected in regard to use of foreign language by merchants and traders in their short memorandum. The character of deposit is an inherent impression in the writing. The Roznamcha refers to the letter and is therefore corroborative of the letter and the terms thereof. The letter further shows that the terms were agreed to by the partners of the firm, namely, the partners of India Supplies and of the respondent. The respondents partner Padampat Singhania gave oral evidence and substantiated the terms of the letter and the respondents case. Padampat Singhania was the person on behalf of the respondent who carried on the negotiations. His evidence was therefore important. The appellants did not examine themselves and did not give any evidence challenging the oral testimony of the respondents partner. On the contrary, the correctness of the letter Ex.was accepted by the appellants witness Ram Ratan Gupta the author of the letter.The Roznamcha entry was proved by Gopi Kishan Saraugi a Munim of the plaintiff. The Roznamcha entry was as follows00, 000 India Supply Ke Nam Asoj Badi Chhatt :Lakshmi Ratan Cotton Mill Ki Chithi se apke nam bada deposit karyapannaevidence was that the books were systematically kept on mahajani system in connection with the business. The witness proved the Khata, the Roznamcha and the nakalbahi entries. Inof Gopi Kishan Saraugi it was suggested that the entry under the date September 30, 1942, in the roznamcha was not written at the same time. The suggestion was that there was interpolation of the words "deposit karaya" in the Roznamcha entry. Inof Padampat Singhania questions were asked about the Rokar, Khata, Nakalbahi and Roznamcha entries. Padampat Singhania said that the entry of Rs. 4, 00, 000 was not recorded in the daily cash book but was recorded in the roznamcha. He also said that credit and debit entries were made in the roznamcha. Padampt Singhania said that the entries were made by Gopi Kishan Jaipuria whowas in a dying condition at the time the witness gave evidence.
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R.K. Shinde & Others Vs. Shekoba Auto Private Limited, & Another | be fully unsupported by evidence.25. The question as to whether the industrial establishments owned by the same management constitute separate unit or one establishment has been considered by the Supreme Court on several occasions. In the case of Management of Wenger & Co. v. Their Workmen, (1963) 2 S.C.R. 862, where the Supreme Court was examining as to whether wine shops are part of hotel establishment observed as under:-The question as to whether industrial establishments owned by the same managements constitute separate units or one establishment has been considered by this Court on several occasions. Several factors are relevant in deciding this question. But it is important to bear in mind that the significance or importance of these relevant factors would not be the same in each case; whether or not the two units constitute one establishment or are really two separate and independent units, must be decided on the facts of each case. Mr. Pathak contends that the Tribunal was in error in holding that the restaurants cannot exist without the wine shops and that there is functional integrality between them. It may be conceded that the observation of the tribunal that there is functional integrality between a restaurant and a wine shop and that the restaurants cannot exist without wine shops is not strictly accurate or correct. But the test of functional integrality or the test whether one unit can exist without the other, though important in some cases, cannot be stressed in every case without having regard to the relevant facts of that case, and so, we are not prepared to accede to the argument that the absence of functional integrality and the fact that the two units can exist one without the other necessarily show that where they exist they are necessarily separate units and do not amount to one establishment. It is hardly necessary to deal with this point elaborately because this Court had occasion to examine this problem in several decisions in the past, vide Associated Cement Companies Ltd. v. Their Workmen; Pratap Press, etc. v. Their Workmen; Pakshiraja Studios v. Its Workmen; South India Mill Owners Association v. Coimbatore District Textile Workers Union; Fine Knitting Co. Ltd. v. Industrial Court and D.C.M. Chemica Works v. Its Workmen.Therefore, in the facts and circumstances of the case, we are of the clear view that the decision of the learned Member of the Industrial Court did not call for any interference.26. Before we part with this appeal, we are required to quote a recent decision of the Supreme Court rendered in the case of Union of India and Another vs. Major Bahadur Singh, (2006) 1 SCC 368. wherein the Supreme Court has observed in paragraphs 9, 10, 11 and 12 of the reported judgment as under:-9. The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclids theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd., v. Harton (1951) 2 All ER 1 (HL) Lord MacDermott observed:(All ER p. 14C-D)The matter cannot, of course, be settled merely by treating the ipsissima verba of Wiles, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge...10. In Home Office v. Dorset Yacht Co. (1970) 2 All ER 294 Lord Reid (All ER p.297 g-h) Lord Atkins speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. Megarry, J. in Shepherd Homes Ltd., v. Sandham (No.2) (1971) 2 All ER 1267 observed : )All ER p. 1274 d-e) One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament; and, in Herrington v. British Railways Board (1972) All ER 749; Lord Morris said: (All ER p.761c):There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. 11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 12. The following words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.* * * *Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it. | 1[ds]13. In our view, the learned Single Judge was not right in holding that the case of the appellant would fall under Item 1 of Schedule IV of the MRTUPULP Act, 1971 by placing reliance on M/s. Lokmat Newspapers Pvt. Ltd., and other judgments referred to in his order. We are in agreement with Mr. Deshmukh that the facts of the case as pleaded in the complaint clearly bring the complaint within the ambit of Item 9 of Schedule IV as held in the case of S.G. Chemicals and Dyes Trading Employees Union (supra) by the Supreme Court. On principle, the facts in the case of S.G. Chemicals and Dyes Trading Employees Union are almost similar with the case inis difficult to appreciate how this principle of interpretation can be invoked by learned counsel for the appellant in connection with item no. 1 of Schedule IV. The word discharge is a general word. It is followed by the word dismissal which contemplates only one category of cases or situations where penalty is imposed by the employer on the workmen concerned. The rule of ejusdem generis would have applied if the word discharge represented a particular species belonging to the genus reflected by the general word dismiss. This is a converse case where a general word discharge is followed by the word dismiss which is of a particular nature or pertains to a limited class or category of penal situations. Obviously, therefore, neither of them is a genus and nor of them is a species of the very same genus. The word discharge connotes an entirely different category of orders comprising of both simpliciter discharge orders not by way of penalty as well as discharge orders by way of penalty but not involving extremely pernicious results flowing from such orders while the word dismiss is purely an order of penalty and that too of an extreme type. Consequently, the aforesaid rule of interpretation cannot be of any avail to learned senior counsel for the appellant. On the contrary, as seen by us earlier, the words discharge and dismissal as employed by the Legislature in item no. 1 of Schedule IV covered different types of situations and circumstances under which they are passed. It is, therefore, not possible to agree with the submission of learned senior counsel for the appellant that unless the respondent shows that he was discharged by way of penalty, he cannot invoke any of the clauses of item no. 1 of SchedulePepsi Co. India Holdings Pvt. Ltd.s case the learned Single Judge while referring to S.G. Chemicals and Dyes Trading Employees Unions case distinguished the same without addressing the core issue as it observed that this judgment (S.G. Chemicals and Dyes Trading Employees Union) cannot be interpreted to mean that the Apex Court has given ato the provisions of tem 1 of Schedule IV which was not the ratio in the decision in S.G. Chemicals and Dyes Trading Employees Unions case. In our view, therefore, the decision on which reliance has been placed by the learned counsel for the Respondent and which led the learned Single Judge to hold that the Industrial Court will have no jurisdiction, does not appeal to reason. Therefore, we find that the issue of jurisdiction raised by the Respondent is baseless.C.U. Singh, the learned senior advocate appearing for the respondent employer, submitted that the learned Single Judge has examined the matter in detail and has come to the conclusion that the evidence on record clearly proved that these were two distinct units as the petitioners products trade mark was Borger whereas thewas the trade mark used by Respondent No. 41 i.e., the other unit Neotronics (P) Limited., and as they were producing different products, the Industrial Court has misdirected itself and has based its finding on excise certificate issued by the excise officers which also was not correct as Shekoba Auto Private Limpid was manufacturing plastic film capacitors whereas the Neotronics (P) Limited was manufacturing wire wound resistors and plastic film capacitors.What we find is that this fact has been dealt by the learned Single Judge in a very casual way by observing that in any event the excise certificate is only for revenue purpose and has nothing to do with the specific types of capacitors or the end usage of the same and as the witness for the employer has explained the line of production in hisand even if it is assumed that they were manufacturing same and similar product, it would not mean that the petitioner and the respondent no. 41 were functionally integrated.One important aspect of the case which has been overlooked is that when one of the original two firms was converted into two companies i.e. Shekoba and Neotronics, the workmen were absorbed in the two companies. It has been tried to be canvassed before us that it was so done so as not to result in unemployment of the workmen and it is not necessarily indicative of the fact that the workmen were absorbed in the two companies, the two companies are part of the same establishment. Further, the case of the respondent employer is to be understood in the backdrop that though the respondent, particularly in respect of Shekoba Auto Private Limited claims that in substance it was a closure but they did not declare it to be so but only resorted to retrenchment of their workmen on the pretext that manufacturing of product was discontinued due to want of orders and loss suffered by the company and, therefore, it was thought proper to retrench the workmen. Therefore, it is an admitted fact that Shekoba did not initiate any proceeding for closing down the undertaking.The learned Single judge while dealing with the matter under Article 226 which leaves very limited scope has not given any finding to the effect that the factors considered by the member of the Industrial Court are either perverse or not germane to the issue. It is equally well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution of India unless at the least it is shown to be fully unsupported by evidence. | 1 | 13,952 | 1,121 | ### Instruction:
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be fully unsupported by evidence.25. The question as to whether the industrial establishments owned by the same management constitute separate unit or one establishment has been considered by the Supreme Court on several occasions. In the case of Management of Wenger & Co. v. Their Workmen, (1963) 2 S.C.R. 862, where the Supreme Court was examining as to whether wine shops are part of hotel establishment observed as under:-The question as to whether industrial establishments owned by the same managements constitute separate units or one establishment has been considered by this Court on several occasions. Several factors are relevant in deciding this question. But it is important to bear in mind that the significance or importance of these relevant factors would not be the same in each case; whether or not the two units constitute one establishment or are really two separate and independent units, must be decided on the facts of each case. Mr. Pathak contends that the Tribunal was in error in holding that the restaurants cannot exist without the wine shops and that there is functional integrality between them. It may be conceded that the observation of the tribunal that there is functional integrality between a restaurant and a wine shop and that the restaurants cannot exist without wine shops is not strictly accurate or correct. But the test of functional integrality or the test whether one unit can exist without the other, though important in some cases, cannot be stressed in every case without having regard to the relevant facts of that case, and so, we are not prepared to accede to the argument that the absence of functional integrality and the fact that the two units can exist one without the other necessarily show that where they exist they are necessarily separate units and do not amount to one establishment. It is hardly necessary to deal with this point elaborately because this Court had occasion to examine this problem in several decisions in the past, vide Associated Cement Companies Ltd. v. Their Workmen; Pratap Press, etc. v. Their Workmen; Pakshiraja Studios v. Its Workmen; South India Mill Owners Association v. Coimbatore District Textile Workers Union; Fine Knitting Co. Ltd. v. Industrial Court and D.C.M. Chemica Works v. Its Workmen.Therefore, in the facts and circumstances of the case, we are of the clear view that the decision of the learned Member of the Industrial Court did not call for any interference.26. Before we part with this appeal, we are required to quote a recent decision of the Supreme Court rendered in the case of Union of India and Another vs. Major Bahadur Singh, (2006) 1 SCC 368. wherein the Supreme Court has observed in paragraphs 9, 10, 11 and 12 of the reported judgment as under:-9. The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclids theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd., v. Harton (1951) 2 All ER 1 (HL) Lord MacDermott observed:(All ER p. 14C-D)The matter cannot, of course, be settled merely by treating the ipsissima verba of Wiles, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge...10. In Home Office v. Dorset Yacht Co. (1970) 2 All ER 294 Lord Reid (All ER p.297 g-h) Lord Atkins speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. Megarry, J. in Shepherd Homes Ltd., v. Sandham (No.2) (1971) 2 All ER 1267 observed : )All ER p. 1274 d-e) One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament; and, in Herrington v. British Railways Board (1972) All ER 749; Lord Morris said: (All ER p.761c):There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. 11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 12. The following words of Lord Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.* * * *Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
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judgments referred to in his order. We are in agreement with Mr. Deshmukh that the facts of the case as pleaded in the complaint clearly bring the complaint within the ambit of Item 9 of Schedule IV as held in the case of S.G. Chemicals and Dyes Trading Employees Union (supra) by the Supreme Court. On principle, the facts in the case of S.G. Chemicals and Dyes Trading Employees Union are almost similar with the case inis difficult to appreciate how this principle of interpretation can be invoked by learned counsel for the appellant in connection with item no. 1 of Schedule IV. The word discharge is a general word. It is followed by the word dismissal which contemplates only one category of cases or situations where penalty is imposed by the employer on the workmen concerned. The rule of ejusdem generis would have applied if the word discharge represented a particular species belonging to the genus reflected by the general word dismiss. This is a converse case where a general word discharge is followed by the word dismiss which is of a particular nature or pertains to a limited class or category of penal situations. Obviously, therefore, neither of them is a genus and nor of them is a species of the very same genus. The word discharge connotes an entirely different category of orders comprising of both simpliciter discharge orders not by way of penalty as well as discharge orders by way of penalty but not involving extremely pernicious results flowing from such orders while the word dismiss is purely an order of penalty and that too of an extreme type. Consequently, the aforesaid rule of interpretation cannot be of any avail to learned senior counsel for the appellant. On the contrary, as seen by us earlier, the words discharge and dismissal as employed by the Legislature in item no. 1 of Schedule IV covered different types of situations and circumstances under which they are passed. It is, therefore, not possible to agree with the submission of learned senior counsel for the appellant that unless the respondent shows that he was discharged by way of penalty, he cannot invoke any of the clauses of item no. 1 of SchedulePepsi Co. India Holdings Pvt. Ltd.s case the learned Single Judge while referring to S.G. Chemicals and Dyes Trading Employees Unions case distinguished the same without addressing the core issue as it observed that this judgment (S.G. Chemicals and Dyes Trading Employees Union) cannot be interpreted to mean that the Apex Court has given ato the provisions of tem 1 of Schedule IV which was not the ratio in the decision in S.G. Chemicals and Dyes Trading Employees Unions case. In our view, therefore, the decision on which reliance has been placed by the learned counsel for the Respondent and which led the learned Single Judge to hold that the Industrial Court will have no jurisdiction, does not appeal to reason. Therefore, we find that the issue of jurisdiction raised by the Respondent is baseless.C.U. Singh, the learned senior advocate appearing for the respondent employer, submitted that the learned Single Judge has examined the matter in detail and has come to the conclusion that the evidence on record clearly proved that these were two distinct units as the petitioners products trade mark was Borger whereas thewas the trade mark used by Respondent No. 41 i.e., the other unit Neotronics (P) Limited., and as they were producing different products, the Industrial Court has misdirected itself and has based its finding on excise certificate issued by the excise officers which also was not correct as Shekoba Auto Private Limpid was manufacturing plastic film capacitors whereas the Neotronics (P) Limited was manufacturing wire wound resistors and plastic film capacitors.What we find is that this fact has been dealt by the learned Single Judge in a very casual way by observing that in any event the excise certificate is only for revenue purpose and has nothing to do with the specific types of capacitors or the end usage of the same and as the witness for the employer has explained the line of production in hisand even if it is assumed that they were manufacturing same and similar product, it would not mean that the petitioner and the respondent no. 41 were functionally integrated.One important aspect of the case which has been overlooked is that when one of the original two firms was converted into two companies i.e. Shekoba and Neotronics, the workmen were absorbed in the two companies. It has been tried to be canvassed before us that it was so done so as not to result in unemployment of the workmen and it is not necessarily indicative of the fact that the workmen were absorbed in the two companies, the two companies are part of the same establishment. Further, the case of the respondent employer is to be understood in the backdrop that though the respondent, particularly in respect of Shekoba Auto Private Limited claims that in substance it was a closure but they did not declare it to be so but only resorted to retrenchment of their workmen on the pretext that manufacturing of product was discontinued due to want of orders and loss suffered by the company and, therefore, it was thought proper to retrench the workmen. Therefore, it is an admitted fact that Shekoba did not initiate any proceeding for closing down the undertaking.The learned Single judge while dealing with the matter under Article 226 which leaves very limited scope has not given any finding to the effect that the factors considered by the member of the Industrial Court are either perverse or not germane to the issue. It is equally well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution of India unless at the least it is shown to be fully unsupported by evidence.
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Bhopal Sugar Industries Ltd.,Madhya Pradesh Vs. D. P. Dube, Sales Tax Officer, Bhopal Region, Bhopal | vehicles. Against the order dismissing the petition this appeal is preferred with special leave. 5. In our judgment the High Court was in error in proceeding to decide the petition on a ground which was not set up in the affidavit of the Sales Tax Officer. The Company claimed relief on the assumption that motor spirits and lubricants used by it for its own vehicles were of its ownership, and appropriation by a retail dealer of the stock-in-trade owned by him for his own use does not constitute sale within the meaning of the Act. The Sales Tax Officer submitted that the consumption of motor spirits and lubricants by the Company amounted to sale, because there was transfer of property from one establishment of the retail dealer to another. On the pleadings, two questions arose for determination. (a) Whether the appropriation of goods amounted to transfer of property by the retail dealer to another person: and (b) Whether such transfer amounted in law to sale. The Legislature has set up an elaborate and self-contained machinery for investigating whether a transaction is liable to be taxed because it is of the nature of a retail sale within the meaning of the Act. The taxing Officer is invested with authority to determine the nature of the transaction and its libility to tax, and against his decision there is an appeal to the appellate authority and a further right of revision to the Commissioner. It is true that the jurisdiction of the High Court under Art. 226 is extensive, but normally the High Court does not exercise that jurisdiction by entertaining petitions against the order of taxing authorities, when the statute under which tax is sought to be levied provides a remedy by way of an appeal or other proceeding to a party aggrieved and thereby by-pass the statutory machinery. That is not to say that the High Court will never entertain a petition against the order of the taxing Officer. The High Court has undoubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes and fundamental rights, or whether the taxing authority has arrogated to himself power which he does not possess, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authorities threatens to recover tax on an interpretation of the statute which is erroneous. The High Court may also in appropriate cases determine the eligibility to tax of transactions the nature of which is admitted but the High Court normally does not proceed to ascertain the nature of a transaction which is alleged to be taxable. The High Court leaves it to the tax payer to obtain an adjudication from the taxing authorities in the first instance. 6. In the present case the Company invoke the jurisdiction of the High Court on question of fact as well as on the constitutionality of the taxing statute and breach of fundamental rights. The High Court instead of determining the Constitutional questions, on which alone the petition could normally be entertained, proceeded to investigate the correctness of an assumption made by the Company, and thereby decided the case which was not expressly raised by the other party. In doing so the High Court fell into an error as it assumed jurisdiction to decide the dispute which had to be decided by resort to the machinery provided under the Act after ascertainment of the true nature of the transaction in the light of the agreement and surrounding circumstances. The order passed by the High Court cannot therefore be upheld. 7. The next question is about the order to be passed in this appeal. For that purpose we must consider the two grounds set up in the petition by the Company. The challenge to the action of the Sales Tax Officer on the plea of infringement of fundamental rights must fail. It is common ground that the State of Madhya Pradesh had power to levy tax on sale or purchase of motor spirits and such power could be exercised only in respect of sales traditionally so understood. State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd., 1959 SCR 379 : (AIR :1958 SC 560) . Section 2 (k) of the Act defines a retail sale as meaning a sale of motor spirit by a retail dealer for the purpose of consumption by the person by whom or on whose behalf it is or may be purchased, and the expression sell in retail shall he construed accordingly. But there is nothing in the definition of S. 2 (k) retail sale nor in the charging Section (S. 3) which indicates that the Legislature had enacted legislation beyond its competence. If the taxing authority had sought to bring to tax a transaction Which is made taxab1e by a competent enactment it would not he open to the High Court exercising power under Art. 226 of the Constitution to consider whether the taxing authority was justified in taxing the transaction. Levy of a tax lawfully imposed under a Stature within the competence of the legislation cannot be deemed to infringe the fundamental rights guaranteed by Art. 19 (1) (f) and (g), and whether the tax is properly levied in respect of a transaction is for the taxing authority to determine and not for the High Court. 8. The levy and collection of the sales tax motor spirits and lubricants consumed by the Company cannot therefore he regarded as illegal unless it is found that the goods were of the ownership of the Company, and for reasons already set out the question whether the goods consumed belonged to the Company must be left to be determined under the Act. The first question raised in the petition cannot therefore be determined by this Court as it could not be determined by the High Court. | 0[ds]5. In our judgment the High Court was in error in proceeding to decide the petition on a ground which was not set up in the affidavit of the Sales Tax Officer. The Company claimed relief on the assumption that motor spirits and lubricants used by it for its own vehicles were of its ownership, and appropriation by a retail dealer of the stock-in-trade owned by him for his own use does not constitute sale within the meaning of the Act. The Sales Tax Officer submitted that the consumption of motor spirits and lubricants by the Company amounted to sale, because there was transfer of property from one establishment of the retail dealer to another. On the pleadings, two questions arose for determination(a) Whether the appropriation of goods amounted to transfer of property by the retail dealer to another person: and(b) Whether such transfer amounted in law to saleThe Legislature has set up an elaborate and self-contained machinery for investigating whether a transaction is liable to be taxed because it is of the nature of a retail sale within the meaning of the Act. The taxing Officer is invested with authority to determine the nature of the transaction and its libility to tax, and against his decision there is an appeal to the appellate authority and a further right of revision to the Commissioner. It is true that the jurisdiction of the High Court under Art. 226 is extensive, but normally the High Court does not exercise that jurisdiction by entertaining petitions against the order of taxing authorities, when the statute under which tax is sought to be levied provides a remedy by way of an appeal or other proceeding to a party aggrieved and thereby by-pass the statutory machinery. That is not to say that the High Court will never entertain a petition against the order of the taxing Officer. The High Court has undoubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes and fundamental rights, or whether the taxing authority has arrogated to himself power which he does not possess, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authorities threatens to recover tax on an interpretation of the statute which is erroneous. The High Court may also in appropriate cases determine the eligibility to tax of transactions the nature of which is admitted but the High Court normally does not proceed to ascertain the nature of a transaction which is alleged to be taxable. The High Court leaves it to the tax payer to obtain an adjudication from the taxing authorities in the first instance6. In the present case the Company invoke the jurisdiction of the High Court on question of fact as well as on the constitutionality of the taxing statute and breach of fundamental rights. The High Court instead of determining the Constitutional questions, on which alone the petition could normally be entertained, proceeded to investigate the correctness of an assumption made by the Company, and thereby decided the case which was not expressly raised by the other party. In doing so the High Court fell into an error as it assumed jurisdiction to decide the dispute which had to be decided by resort to the machinery provided under the Act after ascertainment of the true nature of the transaction in the light of the agreement and surrounding circumstances. The order passed by the High Court cannot therefore be upheldThe challenge to the action of the Sales Tax Officer on the plea of infringement of fundamental rights must fail. It is common ground that the State of Madhya Pradesh had power to levy tax on sale or purchase of motor spirits and such power could be exercised only in respect of sales traditionally so understood. State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd., 1959 SCR 379 : (AIR :1958 SC 560) . Section 2 (k) of the Act defines a retail sale as meaning a sale of motor spirit by a retail dealer for the purpose of consumption by the person by whom or on whose behalf it is or may be purchased, and the expression sell in retail shall he construed accordingly. But there is nothing in the definition of S. 2 (k) retail sale nor in the charging Section (S. 3) which indicates that the Legislature had enacted legislation beyond its competence. If the taxing authority had sought to bring to tax a transaction Which is made taxab1e by a competent enactment it would not he open to the High Court exercising power under Art. 226 of the Constitution to consider whether the taxing authority was justified in taxing the transaction. Levy of a tax lawfully imposed under a Stature within the competence of the legislation cannot be deemed to infringe the fundamental rights guaranteed by Art. 19 (1) (f) and (g), and whether the tax is properly levied in respect of a transaction is for the taxing authority to determine and not for the High Court8. The levy and collection of the sales tax motor spirits and lubricants consumed by the Company cannot therefore he regarded as illegal unless it is found that the goods were of the ownership of the Company, and for reasons already set out the question whether the goods consumed belonged to the Company must be left to be determined under the Act. The first question raised in the petition cannot therefore be determined by this Court as it could not be determined by the High Court. | 0 | 1,882 | 1,020 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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vehicles. Against the order dismissing the petition this appeal is preferred with special leave. 5. In our judgment the High Court was in error in proceeding to decide the petition on a ground which was not set up in the affidavit of the Sales Tax Officer. The Company claimed relief on the assumption that motor spirits and lubricants used by it for its own vehicles were of its ownership, and appropriation by a retail dealer of the stock-in-trade owned by him for his own use does not constitute sale within the meaning of the Act. The Sales Tax Officer submitted that the consumption of motor spirits and lubricants by the Company amounted to sale, because there was transfer of property from one establishment of the retail dealer to another. On the pleadings, two questions arose for determination. (a) Whether the appropriation of goods amounted to transfer of property by the retail dealer to another person: and (b) Whether such transfer amounted in law to sale. The Legislature has set up an elaborate and self-contained machinery for investigating whether a transaction is liable to be taxed because it is of the nature of a retail sale within the meaning of the Act. The taxing Officer is invested with authority to determine the nature of the transaction and its libility to tax, and against his decision there is an appeal to the appellate authority and a further right of revision to the Commissioner. It is true that the jurisdiction of the High Court under Art. 226 is extensive, but normally the High Court does not exercise that jurisdiction by entertaining petitions against the order of taxing authorities, when the statute under which tax is sought to be levied provides a remedy by way of an appeal or other proceeding to a party aggrieved and thereby by-pass the statutory machinery. That is not to say that the High Court will never entertain a petition against the order of the taxing Officer. The High Court has undoubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes and fundamental rights, or whether the taxing authority has arrogated to himself power which he does not possess, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authorities threatens to recover tax on an interpretation of the statute which is erroneous. The High Court may also in appropriate cases determine the eligibility to tax of transactions the nature of which is admitted but the High Court normally does not proceed to ascertain the nature of a transaction which is alleged to be taxable. The High Court leaves it to the tax payer to obtain an adjudication from the taxing authorities in the first instance. 6. In the present case the Company invoke the jurisdiction of the High Court on question of fact as well as on the constitutionality of the taxing statute and breach of fundamental rights. The High Court instead of determining the Constitutional questions, on which alone the petition could normally be entertained, proceeded to investigate the correctness of an assumption made by the Company, and thereby decided the case which was not expressly raised by the other party. In doing so the High Court fell into an error as it assumed jurisdiction to decide the dispute which had to be decided by resort to the machinery provided under the Act after ascertainment of the true nature of the transaction in the light of the agreement and surrounding circumstances. The order passed by the High Court cannot therefore be upheld. 7. The next question is about the order to be passed in this appeal. For that purpose we must consider the two grounds set up in the petition by the Company. The challenge to the action of the Sales Tax Officer on the plea of infringement of fundamental rights must fail. It is common ground that the State of Madhya Pradesh had power to levy tax on sale or purchase of motor spirits and such power could be exercised only in respect of sales traditionally so understood. State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd., 1959 SCR 379 : (AIR :1958 SC 560) . Section 2 (k) of the Act defines a retail sale as meaning a sale of motor spirit by a retail dealer for the purpose of consumption by the person by whom or on whose behalf it is or may be purchased, and the expression sell in retail shall he construed accordingly. But there is nothing in the definition of S. 2 (k) retail sale nor in the charging Section (S. 3) which indicates that the Legislature had enacted legislation beyond its competence. If the taxing authority had sought to bring to tax a transaction Which is made taxab1e by a competent enactment it would not he open to the High Court exercising power under Art. 226 of the Constitution to consider whether the taxing authority was justified in taxing the transaction. Levy of a tax lawfully imposed under a Stature within the competence of the legislation cannot be deemed to infringe the fundamental rights guaranteed by Art. 19 (1) (f) and (g), and whether the tax is properly levied in respect of a transaction is for the taxing authority to determine and not for the High Court. 8. The levy and collection of the sales tax motor spirits and lubricants consumed by the Company cannot therefore he regarded as illegal unless it is found that the goods were of the ownership of the Company, and for reasons already set out the question whether the goods consumed belonged to the Company must be left to be determined under the Act. The first question raised in the petition cannot therefore be determined by this Court as it could not be determined by the High Court.
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5. In our judgment the High Court was in error in proceeding to decide the petition on a ground which was not set up in the affidavit of the Sales Tax Officer. The Company claimed relief on the assumption that motor spirits and lubricants used by it for its own vehicles were of its ownership, and appropriation by a retail dealer of the stock-in-trade owned by him for his own use does not constitute sale within the meaning of the Act. The Sales Tax Officer submitted that the consumption of motor spirits and lubricants by the Company amounted to sale, because there was transfer of property from one establishment of the retail dealer to another. On the pleadings, two questions arose for determination(a) Whether the appropriation of goods amounted to transfer of property by the retail dealer to another person: and(b) Whether such transfer amounted in law to saleThe Legislature has set up an elaborate and self-contained machinery for investigating whether a transaction is liable to be taxed because it is of the nature of a retail sale within the meaning of the Act. The taxing Officer is invested with authority to determine the nature of the transaction and its libility to tax, and against his decision there is an appeal to the appellate authority and a further right of revision to the Commissioner. It is true that the jurisdiction of the High Court under Art. 226 is extensive, but normally the High Court does not exercise that jurisdiction by entertaining petitions against the order of taxing authorities, when the statute under which tax is sought to be levied provides a remedy by way of an appeal or other proceeding to a party aggrieved and thereby by-pass the statutory machinery. That is not to say that the High Court will never entertain a petition against the order of the taxing Officer. The High Court has undoubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes and fundamental rights, or whether the taxing authority has arrogated to himself power which he does not possess, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authorities threatens to recover tax on an interpretation of the statute which is erroneous. The High Court may also in appropriate cases determine the eligibility to tax of transactions the nature of which is admitted but the High Court normally does not proceed to ascertain the nature of a transaction which is alleged to be taxable. The High Court leaves it to the tax payer to obtain an adjudication from the taxing authorities in the first instance6. In the present case the Company invoke the jurisdiction of the High Court on question of fact as well as on the constitutionality of the taxing statute and breach of fundamental rights. The High Court instead of determining the Constitutional questions, on which alone the petition could normally be entertained, proceeded to investigate the correctness of an assumption made by the Company, and thereby decided the case which was not expressly raised by the other party. In doing so the High Court fell into an error as it assumed jurisdiction to decide the dispute which had to be decided by resort to the machinery provided under the Act after ascertainment of the true nature of the transaction in the light of the agreement and surrounding circumstances. The order passed by the High Court cannot therefore be upheldThe challenge to the action of the Sales Tax Officer on the plea of infringement of fundamental rights must fail. It is common ground that the State of Madhya Pradesh had power to levy tax on sale or purchase of motor spirits and such power could be exercised only in respect of sales traditionally so understood. State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd., 1959 SCR 379 : (AIR :1958 SC 560) . Section 2 (k) of the Act defines a retail sale as meaning a sale of motor spirit by a retail dealer for the purpose of consumption by the person by whom or on whose behalf it is or may be purchased, and the expression sell in retail shall he construed accordingly. But there is nothing in the definition of S. 2 (k) retail sale nor in the charging Section (S. 3) which indicates that the Legislature had enacted legislation beyond its competence. If the taxing authority had sought to bring to tax a transaction Which is made taxab1e by a competent enactment it would not he open to the High Court exercising power under Art. 226 of the Constitution to consider whether the taxing authority was justified in taxing the transaction. Levy of a tax lawfully imposed under a Stature within the competence of the legislation cannot be deemed to infringe the fundamental rights guaranteed by Art. 19 (1) (f) and (g), and whether the tax is properly levied in respect of a transaction is for the taxing authority to determine and not for the High Court8. The levy and collection of the sales tax motor spirits and lubricants consumed by the Company cannot therefore he regarded as illegal unless it is found that the goods were of the ownership of the Company, and for reasons already set out the question whether the goods consumed belonged to the Company must be left to be determined under the Act. The first question raised in the petition cannot therefore be determined by this Court as it could not be determined by the High Court.
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State of Orissa Vs. Minerals & Metals Trading Corporation of India Limited | are two distinct events. A sale in the course of the export of the goods cannot be a sale within the State of Orissa. The assessee entered into contracts with the Japanese buyers for export sale of the mineral ores. An export sale has an entirely different legal concept. In the export sale, the sale and the export are so intertwined and intermixed that both begin and end together. The various clauses of the contract entered into by the assessee and the Japanese buyers are wholly irrelevant and are of no consequence. Even if on the construction of the contract of export sale the sale part of it is completed within the State it would still not be considered as legally complete because till the time the sale and the export both are completed none can be taken to be complete. It is, therefore, inherent in the concept of export sale that both the sale and the export are completed when the goods are appropriated by the foreign buyer. 12. Patanjali Sastri, C.J., speaking for this Court in State of Travancore-Cochin and Ors. v. The Bombay Co. Ltd. [1952]1SCR1112 , examining the scope of the export sale under Article 286(1)(b) of the Constitution of India observed as under: We are clearly of opinion that the sales here in question, which occasioned the export in each case, fall within the scope of the exemption under Article 286(1)(b). Such sales must of necessity he put through by transporting the goods by rail or ship or both out of the territory of India, that is to say, by employing the machinery of export. A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction. Of these two integrated activities, which together constitute an export sale whichever first occurs can well be regarded as taking place in the course of the other. Assuming without deciding that the property in the goods in the present cases passed to the foreign buyers and the sales were thus completed within the State before the goods commenced their journey as found by the Sales Tax Authorities, the sales must, nevertheless, be regarded as having taken place in the course of the export and are, therefore, exempt under Article 286(1)(b). 13. M. Hidayatullah, C.J. speaking for this Court in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras and Anr. [1970]3SCR147 , interpreted the phrase sale in the course of export in the following words: The phrase sale in the course of export comprises in itself three essential: (i) that there must be a sale (ii) that goods must actually be exported and (iii) the sale must be a part and parcel of the export.... The export results from the sale and is bound up with it. The word course in the expression in the course of means progress of process of, or shortly during. The phrase expanded with this meaning reads in the progress or process export or during export. Therefore the export from India to a foreign destination must be established and the sale must be a link in the same export for which the sale is held. 14. In Md. Serajuddin and Ors. v. State of Orissa AIR1975SC1564 , this Court examined the earlier judgments on the interpretation of Article 286(1)(b) of the Constitution of India. It would be useful to refer the following observations of the Bench in the said case: The expression in the course implies not only a period of time during which the movement is in progress but postulates a connected relation. Sale in the course of export out of the territory of India means sale taking place not only during the activities directed to be end of exportation of the goods out of the country but also as part of or connected with such activities. 15. It is, therefore, clear that the export sale envisaged under Article 286(1)(b) of the Constitution of India continue to be in the process of completion till the goods reach the destination. 16. The argument of the learned Counsel for the respondent that the assessee by the deposit of the mineral, ores at Paradeep Port made a sale to the foreign buyer at the port is fallacious and overlooks the fact that the purchase had been made by the assessee from the registered dealers, to satisfy his pre-existing contract with the Japanese buyer and the goods were deposited or believed at Paradeep Port for transportation, put of the country, to the destination of the foreign buyer, to satisfy the requirements of the pre-existing contract, the delivery of the goods at the Paradeep Port was thus in discharge of the obligation under the contract on the part of the exporter-assessed and formed but a single transaction. It was not a second sale to the foreign buyer in the State of Orissa. The effort to confuse the delivery of goods at Paradeep Port for transportation to the destination of the foreign buyer with a sale at Paradeep Port is a futile attempt to wriggle out of his mis-declaration. In the declaration filed by the assessee, he. not only misstated that the goods were meant for re-sale within the State of Orissa but also concealed the fact that there was a pre-existing contract between the assessee and the Japanese buyers to satisfy which the mineral ores were being purchase, for export, from the registered dealers. The declaration made by the assessee concealed more than what is revealed. The assessee, therefore, made a declaration which was palpably incorrect. The assessee thus contravened the provisions of Section 5(2)(A)(a)(ii) of the Act and rendered itself liable under the proviso to the said Section, | 1[ds]6. The undisputed scheme of the Act is that a dealer becomes liable to pay tax at the time of purchase but being a registered dealer under the Act a facility is given to him and the liability to pay the tax is deferred to a later stage, when he resells the goods. To ensure that the sale does not escape tax altogether a declaration is taken from the dealer to the effect that the goods are meant for resale within the State. In other words, the Act has adopted a single point tax. Under the scheme, the taxable event is postponed until a registered dealer sells the goods to an unregistered dealer, a consumer or in breach of the undertaking diverts the goods for other purposes. The proviso to Section 5(2) of the Act operates when the purchasing dealer violates his undertaking and he becomes liable to pay the tax which he had avoided on the basis of the declaration.7. It is not disputed that the assessee purchased mineral ores from the mine owners - who were registered dealers under the Act - upon furnishing declaration as provided in Rule 27(2) of the Rules. The assessee had not paid sales tax on those purchase. The declaration makes it obligatory for the assessee to resell the mineral ores, so purchased, within the State of Orissa.8. The learned Counsel for the appellant has not challenged before us the finding of the High Court that the sale by the assessee to the Japanese buyers is covered by the embargo under Article 286(1)(b) of the Constitution of India read with Section 5 of the Central. Sales Tax Act and, therefore, is not exigible to sales tax under the Act.15. It is, therefore, clear that the export sale envisaged under Article 286(1)(b) of the Constitution of India continue to be in the process of completion till the goods reach the destination.16. The argument of the learned Counsel for the respondent that the assessee by the deposit of the mineral, ores at Paradeep Port made a sale to the foreign buyer at the port is fallacious and overlooks the fact that the purchase had been made by the assessee from the registered dealers, to satisfy his pre-existing contract with the Japanese buyer and the goods were deposited or believed at Paradeep Port for transportation, put of the country, to the destination of the foreign buyer, to satisfy the requirements of the pre-existing contract, the delivery of the goods at the Paradeep Port was thus in discharge of the obligation under the contract on the part of the exporter-assessed and formed but a single transaction. It was not a second sale to the foreign buyer in the State of Orissa. The effort to confuse the delivery of goods at Paradeep Port for transportation to the destination of the foreign buyer with a sale at Paradeep Port is a futile attempt to wriggle out of his mis-declaration. In the declaration filed by the assessee, he. not only misstated that the goods were meant for re-sale within the State of Orissa but also concealed the fact that there was a pre-existing contract between the assessee and the Japanese buyers to satisfy which the mineral ores were being purchase, for export, from the registered dealers. The declaration made by the assessee concealed more than what is revealed. The assessee, therefore, made a declaration which was palpably incorrect. The assessee thus contravened the provisions of Section 5(2)(A)(a)(ii) of the Act and rendered itself liable under the proviso to the said Section,The State of Orissa has not come up in appeal against the judgment of the High Court allowing the writ petitions of the petitioners falling under category Nos. (1) and (2) before the High Court. We are not expressing any opinion in respect of the part of the judgment of the High Court which is not under appeal before us.28. We have been taken through the judgment of the High Court wherein all the points raised by the appellants-petitioners have been dealt with by giving detailed reasons in respect of each of the points. We see no ground to interfere with the judgment of the High Court. We agree with the reasoning and the conclusions reached therein.29. We have today pronounced judgments in civil Appeals Nos. 1811-15(NT) of 1977 titled State of Orissa v. Minerals and Metals Trading Corporation of India Limited and also in Civil Appeal Nos.343-347 of 1987 .titled Industrial Minerals & Metals and Anr. v. The Sales Tax Officer and Anr. Even on the force of the reasoning and conclusions in these judgments, this appeal has to be dismissed.34. We are of the view that the High Court fell into patent error in holding that the sales in dispute were made by the assessee within the State of Orissa. It is not disputed that the said sales were in the course of inter-state trade. If the goods were to retain within the State of Orissa the sales could not be in the course of Inter-State trade. To make a sale in the course of inter-State trade, it is necessary that the contract must envisage the completion of the sale as well as the movement of the goods to the other State in the course of inter-State trade. The very fact that the sales in dispute were the sales in the course of inter-State trade, they could not be the sales within the state in terms of Section 2(g) of the Act. The Act provides for a single point levy and the tax is payable at one point or the other. When the assessee purchased the goods free of tax by giving an undertaking that the goods would be resold within the State of Orissa and subsequently violates the undertaking by selling the goods in the course of inter-State trade and commerce, the proviso to Section 5(2)(A)(a)(ii) of the Act is directly attracted and the assessee is liable to pay tax. A sale cannot be inside Orissa and at the same time in the course of inter-State trade and commerce. In order that a sale or purchase might be inter-State, it is essential that there must be transport of goods from one State to another under the contract of sale or purchase. In Bengal Immunity Company Limited v. State of Bihar [1955]2SCR603 , occur the following observations which are apposite:A sale could be said to be in the course of inter- State trade only if two conditions concur (1) A sale of goods, and (2) A transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter-Statet is the admitted case of the assessee that the sales in question were the sales in the course of inter-State trade and if that is the position then the question of the same sales being the sales within the State did not arise.35. We have, today, pronounced judgment in Civil Appeals Nos. 343-347 of 1987 titled Industrial Minerals & Metals and Anr. v. The Sales Tax Officer and Anr. wherein we have held that a sale in the course of the export of goods out of the territory of India cannot be a sale at the same time within the State of Orissa. On the principles, a sale in the course of inter-State trade and commerce cannot be a sale within the State of Orissa.36. There is, thus, patent violation of the undertaking given by the assessee37. In Endurpuri Narasimhan & Son v. State of Orissa and Ors. (1961) 12 STC 282 , certain sales to the petitioner therein were not included in the taxable turnover of the seller by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in Orissa. In violation of the declaration the petitioner sold the goods to dealers outside the State and he was taxed under Section 5(2)(a)(ii) of the Act. This Court held that the imposition of the tax was not on the sales by the petitioner to person outside the State but on the purchases by him inside the State for which he gave an undertaking and violated the same by not selling the goods within the State of Orissa.38. Even otherwise, the High Court was not justified in holding that the onus for proving that the goods at the time of the contract were not within the State of Orissa was on the sales tax authority. The assessee on purchase of the goods became liable to pay the tax but he did not do so because it was a sale from a registered dealer to a registered dealer. The assessee saved the tax and postponed the event by giving an undertaking that he would sell the goods within the State. True to the undertaking the onus to show that the goods were actually sold within the State of Orissa was on the assessee. In any case, a contract of sale by which the goods are sold and are to be transported from one State to another cannot be made a lever for the argument that though the sale is in the course of inter-state trade and commerce but nevertheless it is a sale within the State of Orissa under Section 2(g) of the Act.43. We have today delivered judgment in Civil Appeals Nos. 2947-50 (NT) of 1977 wherein the High Court judgment in State of Orissa v. Johrimal Gajanand (1976) 37 STC 157 has been reversed.The High Court rejected the contentions of the appellants and upheld the validity of the amended Section 5(2)(A)(a)(ii) of the OST Act on the following reasoning:Under the scheme of the Act, the taxable event is postponed until the registered dealer sells the goods to an unregistered dealer or a consumer, or in breach of the undertaking given. Law is well settled that the competent legislature can enact law after removing the infirmities or deficiencies as pointed out by the Court. All that is to be seen in such cases is that the amended law is within the competence of the legislature. Powers of the State Legislature under Entry 54 of List II of the VII Schedule to the Constitution are plenary. The impugned amended Act is an attempt by the State Legislature to ensure the single point levy by nullifying the effect of the two decisions of this Court. The question is whether such action is within the competence of the State Legislature and is in conformity with Article 286 of the Constitution of India.It is the contention of the petitioners that the goods were meant for resale in Orissa and in fact were resold inside Orissa. The State Legislature has power to impose tax on the sale or purchase of goods other than news papers. This is subject to the provisions of Entry No. 92 A of List I. The petitioners would have paid the tax while purchasing the goods from a registered dealer. But while purchasing the goods, they have avoided the tax by giving a declaration that the goods purchased were meant for the purpose of resale in Orissa and such resale should be subject to levy tax under the O.S.T. Act. But subsequently, in violation of the declaration they have sold the same in course of inter-state trade or commerce or export and avoided payment of tax. Normally the tax should have been paid at the first point and the petitioners could not have avoided payment of such tax and would have paid the tax but for the declaration given by them. They have sold the goods in violation of the declaration given by them. As already held, in case of declared goods, they are entitled to reimbursement by virtue of Section 15 of the CST Act_ and Section 14-B of the O.S.T. Act and Rule 42-A of the O.S.T. Rules. From Section 15 of the CST Act_, it is abundantly clear that it places restrictions and conditions upon the local law. Its intention is that declared goods should suffer tax at only one point and at a prescribed rate, Section 15 does not bar levy of sales tax by a State on declared goods, but it provides for refund of such tax to the persons making such sale in the course of inter-State Trade or commerce, Therefore, Section 15 clearly shows that there is no bar for levy of charge on declaration goods but that is to be refunded. In Section 15, no provision has been made for refund of tax on goods other than declared goods. From this, it can be gathered that the State has also the power to impose tax on the declared goods. But by virtue of Section 15, it is to be reimbursed. If the intention were not to tax goods other than declared goods, such provision should have been clearly made. Viewed from this angle, it cannot be said that the assessment and the demand of tax made by the authorities are bad and should be struck down. The State by the amended provision has only wanted to impose tax on intra-State sale and it is within the competence and powers of the State Legislature under Entry 54 of List II of Schedule VII of the Constitution of India.44. We agree with the above quoted reasoning and the conclusions reached by the High Court. | 1 | 4,044 | 2,475 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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are two distinct events. A sale in the course of the export of the goods cannot be a sale within the State of Orissa. The assessee entered into contracts with the Japanese buyers for export sale of the mineral ores. An export sale has an entirely different legal concept. In the export sale, the sale and the export are so intertwined and intermixed that both begin and end together. The various clauses of the contract entered into by the assessee and the Japanese buyers are wholly irrelevant and are of no consequence. Even if on the construction of the contract of export sale the sale part of it is completed within the State it would still not be considered as legally complete because till the time the sale and the export both are completed none can be taken to be complete. It is, therefore, inherent in the concept of export sale that both the sale and the export are completed when the goods are appropriated by the foreign buyer. 12. Patanjali Sastri, C.J., speaking for this Court in State of Travancore-Cochin and Ors. v. The Bombay Co. Ltd. [1952]1SCR1112 , examining the scope of the export sale under Article 286(1)(b) of the Constitution of India observed as under: We are clearly of opinion that the sales here in question, which occasioned the export in each case, fall within the scope of the exemption under Article 286(1)(b). Such sales must of necessity he put through by transporting the goods by rail or ship or both out of the territory of India, that is to say, by employing the machinery of export. A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction. Of these two integrated activities, which together constitute an export sale whichever first occurs can well be regarded as taking place in the course of the other. Assuming without deciding that the property in the goods in the present cases passed to the foreign buyers and the sales were thus completed within the State before the goods commenced their journey as found by the Sales Tax Authorities, the sales must, nevertheless, be regarded as having taken place in the course of the export and are, therefore, exempt under Article 286(1)(b). 13. M. Hidayatullah, C.J. speaking for this Court in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras and Anr. [1970]3SCR147 , interpreted the phrase sale in the course of export in the following words: The phrase sale in the course of export comprises in itself three essential: (i) that there must be a sale (ii) that goods must actually be exported and (iii) the sale must be a part and parcel of the export.... The export results from the sale and is bound up with it. The word course in the expression in the course of means progress of process of, or shortly during. The phrase expanded with this meaning reads in the progress or process export or during export. Therefore the export from India to a foreign destination must be established and the sale must be a link in the same export for which the sale is held. 14. In Md. Serajuddin and Ors. v. State of Orissa AIR1975SC1564 , this Court examined the earlier judgments on the interpretation of Article 286(1)(b) of the Constitution of India. It would be useful to refer the following observations of the Bench in the said case: The expression in the course implies not only a period of time during which the movement is in progress but postulates a connected relation. Sale in the course of export out of the territory of India means sale taking place not only during the activities directed to be end of exportation of the goods out of the country but also as part of or connected with such activities. 15. It is, therefore, clear that the export sale envisaged under Article 286(1)(b) of the Constitution of India continue to be in the process of completion till the goods reach the destination. 16. The argument of the learned Counsel for the respondent that the assessee by the deposit of the mineral, ores at Paradeep Port made a sale to the foreign buyer at the port is fallacious and overlooks the fact that the purchase had been made by the assessee from the registered dealers, to satisfy his pre-existing contract with the Japanese buyer and the goods were deposited or believed at Paradeep Port for transportation, put of the country, to the destination of the foreign buyer, to satisfy the requirements of the pre-existing contract, the delivery of the goods at the Paradeep Port was thus in discharge of the obligation under the contract on the part of the exporter-assessed and formed but a single transaction. It was not a second sale to the foreign buyer in the State of Orissa. The effort to confuse the delivery of goods at Paradeep Port for transportation to the destination of the foreign buyer with a sale at Paradeep Port is a futile attempt to wriggle out of his mis-declaration. In the declaration filed by the assessee, he. not only misstated that the goods were meant for re-sale within the State of Orissa but also concealed the fact that there was a pre-existing contract between the assessee and the Japanese buyers to satisfy which the mineral ores were being purchase, for export, from the registered dealers. The declaration made by the assessee concealed more than what is revealed. The assessee, therefore, made a declaration which was palpably incorrect. The assessee thus contravened the provisions of Section 5(2)(A)(a)(ii) of the Act and rendered itself liable under the proviso to the said Section,
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within the State of Orissa.36. There is, thus, patent violation of the undertaking given by the assessee37. In Endurpuri Narasimhan & Son v. State of Orissa and Ors. (1961) 12 STC 282 , certain sales to the petitioner therein were not included in the taxable turnover of the seller by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in Orissa. In violation of the declaration the petitioner sold the goods to dealers outside the State and he was taxed under Section 5(2)(a)(ii) of the Act. This Court held that the imposition of the tax was not on the sales by the petitioner to person outside the State but on the purchases by him inside the State for which he gave an undertaking and violated the same by not selling the goods within the State of Orissa.38. Even otherwise, the High Court was not justified in holding that the onus for proving that the goods at the time of the contract were not within the State of Orissa was on the sales tax authority. The assessee on purchase of the goods became liable to pay the tax but he did not do so because it was a sale from a registered dealer to a registered dealer. The assessee saved the tax and postponed the event by giving an undertaking that he would sell the goods within the State. True to the undertaking the onus to show that the goods were actually sold within the State of Orissa was on the assessee. In any case, a contract of sale by which the goods are sold and are to be transported from one State to another cannot be made a lever for the argument that though the sale is in the course of inter-state trade and commerce but nevertheless it is a sale within the State of Orissa under Section 2(g) of the Act.43. We have today delivered judgment in Civil Appeals Nos. 2947-50 (NT) of 1977 wherein the High Court judgment in State of Orissa v. Johrimal Gajanand (1976) 37 STC 157 has been reversed.The High Court rejected the contentions of the appellants and upheld the validity of the amended Section 5(2)(A)(a)(ii) of the OST Act on the following reasoning:Under the scheme of the Act, the taxable event is postponed until the registered dealer sells the goods to an unregistered dealer or a consumer, or in breach of the undertaking given. Law is well settled that the competent legislature can enact law after removing the infirmities or deficiencies as pointed out by the Court. All that is to be seen in such cases is that the amended law is within the competence of the legislature. Powers of the State Legislature under Entry 54 of List II of the VII Schedule to the Constitution are plenary. The impugned amended Act is an attempt by the State Legislature to ensure the single point levy by nullifying the effect of the two decisions of this Court. The question is whether such action is within the competence of the State Legislature and is in conformity with Article 286 of the Constitution of India.It is the contention of the petitioners that the goods were meant for resale in Orissa and in fact were resold inside Orissa. The State Legislature has power to impose tax on the sale or purchase of goods other than news papers. This is subject to the provisions of Entry No. 92 A of List I. The petitioners would have paid the tax while purchasing the goods from a registered dealer. But while purchasing the goods, they have avoided the tax by giving a declaration that the goods purchased were meant for the purpose of resale in Orissa and such resale should be subject to levy tax under the O.S.T. Act. But subsequently, in violation of the declaration they have sold the same in course of inter-state trade or commerce or export and avoided payment of tax. Normally the tax should have been paid at the first point and the petitioners could not have avoided payment of such tax and would have paid the tax but for the declaration given by them. They have sold the goods in violation of the declaration given by them. As already held, in case of declared goods, they are entitled to reimbursement by virtue of Section 15 of the CST Act_ and Section 14-B of the O.S.T. Act and Rule 42-A of the O.S.T. Rules. From Section 15 of the CST Act_, it is abundantly clear that it places restrictions and conditions upon the local law. Its intention is that declared goods should suffer tax at only one point and at a prescribed rate, Section 15 does not bar levy of sales tax by a State on declared goods, but it provides for refund of such tax to the persons making such sale in the course of inter-State Trade or commerce, Therefore, Section 15 clearly shows that there is no bar for levy of charge on declaration goods but that is to be refunded. In Section 15, no provision has been made for refund of tax on goods other than declared goods. From this, it can be gathered that the State has also the power to impose tax on the declared goods. But by virtue of Section 15, it is to be reimbursed. If the intention were not to tax goods other than declared goods, such provision should have been clearly made. Viewed from this angle, it cannot be said that the assessment and the demand of tax made by the authorities are bad and should be struck down. The State by the amended provision has only wanted to impose tax on intra-State sale and it is within the competence and powers of the State Legislature under Entry 54 of List II of Schedule VII of the Constitution of India.44. We agree with the above quoted reasoning and the conclusions reached by the High Court.
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JASWANT SINGH Vs. UNION OF INDIA MINISTRY OF DEFENCE THROUGH ITS SECRETARY | It represents an entitlement to be represented.By his letter dated 7.7.2009, the appellant requested the Commanding Officer to permit him to hire a civil advocate.On 8 th July, 2009, this request was turned down on the ground that under Regulation 479 of the Army Regulations, a civil advocate is permissible to only those persons who are subject to trial for an offence which may result in the imposition of the death penalty.Regulation 479 deals with a situation where a person who is subject to the Army Act is to be tried for a court martial for an offence punishable with death. On the contrary, Rule 129 of the Army Rules which has been extracted above specifically deals with representation in a Summary Court Martial.In view of the specific provision of Rule 129, the Commanding Officer was evidently in error in declining the assistance of a lawyer on the ground that legal assitanfce could be admissible only where the offence was punishable with death.Ms. Pinky Anand, learned ASG appearing for the Union of India submits that no prejudice was caused to the appellant and hence, the Court may not entertain the appeal. In this connection, reliance was placed on the decision of this Court in Major G.S. Sodhi vs. Union of India (1991) 2 SCC 382 . The judgment in Major Sodhi’s case (supra) dealt with a case of a General Court Martial. The circumstances of the case have been adverted to in paragraph 20 of the judgment. This Court noted that in the letter of the accused, there was a reference to Rule 95 which dealt only with a ‘defending officer’ and ‘friend of the accused’ to be provided for on request.It was in this background that this Court observed as follows:-“20. The next submission is that the proper defence as requested by the petitioner has not been provided for. In this regard it is submitted that on December 8, 1988 the petitioner made a request for a defence counsel and on December 18, 1988 he gave consent to dispense with the defending officer. However on May 8, 1989 Lt. Col. S.K. Maini asked the petitioner for three names of defending officers in order of preference. On May 9, 1989 he gave the list of three names but according to the petitioner on May 17, 1989 Lt. Col. S.K. Maini detailed Lt. Col. R.S. Bhatt who is of his own choice. It is also pointed out that on May 18, 1989 the petitioner during the court-martial requested for adjournment of the court for 10 days in order to engage a defence counsel. This request was turned down on the wrong advice of the Judge-Advocate. The further submission is that the petitioner on May 19, 1989 wrote a communication to the convening officer and apprised them with the prejudice caused to his defence. Considerable reliance is placed on this letter. We have perused the same. In that there is a reference to Rule 95 which deals only with the defending officer and friend of the accused’ to be provided for on request. The complaint made in the letter is about not providing the defending officer of his choice at the trial. There are some of the circumstances which according to the learned Counsel should be taken into account in appreciating the prejudice caused to the petitioners defence. Rules 95 to 101 deal with the appointment of defending officers and providing defence to the accused. Rule 95 lays down that at any general or district court-martial the accused person should be represented by any person who shall be called the defending officer. It is the duty of the convening officer to ascertain whether an accused person desires to have a defending officer assigned to represent him at his trial and if he does so desire, the convening officer shall use his best endeavours to ensure that the accused shall be so represented by a suitable officer. This rule also provides that accused person should be assisted by any person whose services he may be able to procure and who shall be called "friend of the accused" to give advice to the accused on all points and suggest the questions to be put to the witnesses. Under Rule 96 in certain general and district court- martials the counsel is allowed if the convening officer declares that it is expedient to allow the appearance of the counsel. Rule 97 prescribes the requirements for appearance of counsel. From a combined reading of these rules it appears that generally it is the defending officer selected by the convening officer who defends the accused and the accused is allowed in special cases if the convening officer declares that it is expedient to allow the appearance of the counsel which is exceptional. However, in this case we need not make a roving investigation on this aspect because we do not find any illegality or irregularity that vitiate the trial nor we find any prejudice having been caused to the accused. As noted above under the rules the defending officer so selected is authorised to represent the accused and examine and cross-examine the witnesses. All that has been done duly in this case. Therefore we are unable to agree that prejudice has been caused to the petitioners defence.”(emphasis supplied) The above factual basis on which it was held that no prejudice had been caused to the defence of the appellant was evidently the foundation of the ultimate decision of this Court.In the present cae, the appellant had rendered seven years of service. He was pitted against his Commanding Officer. In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense.For these reasons, we are of the view that there was a clear violation of the principles of natural justice. The prejudice too is evident. The appellant was dismissed from service and sentenced to six months’ imprisonment. Both his livelihood and liberty were taken away. | 1[ds]The above Rule clearly indicates that in a Summary Court Martial, the accused may have a person to assist him during the trial, whether a legal adviser or any other person. The expressionmust be read to mean that the person who is proceeded against has the option on whether or not to engage a legal advisor or any other person. It represents an entitlement to be represented.By his letter dated 7.7.2009, the appellant requested the Commanding Officer to permit him to hire a civil advocate.On 8 th July, 2009, this request was turned down on the ground that under Regulation 479 of the Army Regulations, a civil advocate is permissible to only those persons who are subject to trial for an offence which may result in the imposition of the death penalty.Regulation 479 deals with a situation where a person who is subject to the Army Act is to be tried for a court martial for an offence punishable with death. On the contrary, Rule 129 of the Army Rules which has been extracted above specifically deals with representation in a Summary Court Martial.In view of the specific provision of Rule 129, the Commanding Officer was evidently in error in declining the assistance of a lawyer on the ground that legalcould be admissible only where the offence was punishable withabove factual basis on which it was held that no prejudice had been caused to the defence of the appellant was evidently the foundation of the ultimate decision of this Court.In the present cae, the appellant had rendered seven years of service. He was pitted against his Commanding Officer. In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense.For these reasons, we are of the view that there was a clear violation of the principles of natural justice. The prejudice too is evident. The appellant was dismissed from service and sentenced to siximprisonment. Both his livelihood and liberty were taken away. | 1 | 1,528 | 360 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
It represents an entitlement to be represented.By his letter dated 7.7.2009, the appellant requested the Commanding Officer to permit him to hire a civil advocate.On 8 th July, 2009, this request was turned down on the ground that under Regulation 479 of the Army Regulations, a civil advocate is permissible to only those persons who are subject to trial for an offence which may result in the imposition of the death penalty.Regulation 479 deals with a situation where a person who is subject to the Army Act is to be tried for a court martial for an offence punishable with death. On the contrary, Rule 129 of the Army Rules which has been extracted above specifically deals with representation in a Summary Court Martial.In view of the specific provision of Rule 129, the Commanding Officer was evidently in error in declining the assistance of a lawyer on the ground that legal assitanfce could be admissible only where the offence was punishable with death.Ms. Pinky Anand, learned ASG appearing for the Union of India submits that no prejudice was caused to the appellant and hence, the Court may not entertain the appeal. In this connection, reliance was placed on the decision of this Court in Major G.S. Sodhi vs. Union of India (1991) 2 SCC 382 . The judgment in Major Sodhi’s case (supra) dealt with a case of a General Court Martial. The circumstances of the case have been adverted to in paragraph 20 of the judgment. This Court noted that in the letter of the accused, there was a reference to Rule 95 which dealt only with a ‘defending officer’ and ‘friend of the accused’ to be provided for on request.It was in this background that this Court observed as follows:-“20. The next submission is that the proper defence as requested by the petitioner has not been provided for. In this regard it is submitted that on December 8, 1988 the petitioner made a request for a defence counsel and on December 18, 1988 he gave consent to dispense with the defending officer. However on May 8, 1989 Lt. Col. S.K. Maini asked the petitioner for three names of defending officers in order of preference. On May 9, 1989 he gave the list of three names but according to the petitioner on May 17, 1989 Lt. Col. S.K. Maini detailed Lt. Col. R.S. Bhatt who is of his own choice. It is also pointed out that on May 18, 1989 the petitioner during the court-martial requested for adjournment of the court for 10 days in order to engage a defence counsel. This request was turned down on the wrong advice of the Judge-Advocate. The further submission is that the petitioner on May 19, 1989 wrote a communication to the convening officer and apprised them with the prejudice caused to his defence. Considerable reliance is placed on this letter. We have perused the same. In that there is a reference to Rule 95 which deals only with the defending officer and friend of the accused’ to be provided for on request. The complaint made in the letter is about not providing the defending officer of his choice at the trial. There are some of the circumstances which according to the learned Counsel should be taken into account in appreciating the prejudice caused to the petitioners defence. Rules 95 to 101 deal with the appointment of defending officers and providing defence to the accused. Rule 95 lays down that at any general or district court-martial the accused person should be represented by any person who shall be called the defending officer. It is the duty of the convening officer to ascertain whether an accused person desires to have a defending officer assigned to represent him at his trial and if he does so desire, the convening officer shall use his best endeavours to ensure that the accused shall be so represented by a suitable officer. This rule also provides that accused person should be assisted by any person whose services he may be able to procure and who shall be called "friend of the accused" to give advice to the accused on all points and suggest the questions to be put to the witnesses. Under Rule 96 in certain general and district court- martials the counsel is allowed if the convening officer declares that it is expedient to allow the appearance of the counsel. Rule 97 prescribes the requirements for appearance of counsel. From a combined reading of these rules it appears that generally it is the defending officer selected by the convening officer who defends the accused and the accused is allowed in special cases if the convening officer declares that it is expedient to allow the appearance of the counsel which is exceptional. However, in this case we need not make a roving investigation on this aspect because we do not find any illegality or irregularity that vitiate the trial nor we find any prejudice having been caused to the accused. As noted above under the rules the defending officer so selected is authorised to represent the accused and examine and cross-examine the witnesses. All that has been done duly in this case. Therefore we are unable to agree that prejudice has been caused to the petitioners defence.”(emphasis supplied) The above factual basis on which it was held that no prejudice had been caused to the defence of the appellant was evidently the foundation of the ultimate decision of this Court.In the present cae, the appellant had rendered seven years of service. He was pitted against his Commanding Officer. In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense.For these reasons, we are of the view that there was a clear violation of the principles of natural justice. The prejudice too is evident. The appellant was dismissed from service and sentenced to six months’ imprisonment. Both his livelihood and liberty were taken away.
### Response:
1
### Explanation:
The above Rule clearly indicates that in a Summary Court Martial, the accused may have a person to assist him during the trial, whether a legal adviser or any other person. The expressionmust be read to mean that the person who is proceeded against has the option on whether or not to engage a legal advisor or any other person. It represents an entitlement to be represented.By his letter dated 7.7.2009, the appellant requested the Commanding Officer to permit him to hire a civil advocate.On 8 th July, 2009, this request was turned down on the ground that under Regulation 479 of the Army Regulations, a civil advocate is permissible to only those persons who are subject to trial for an offence which may result in the imposition of the death penalty.Regulation 479 deals with a situation where a person who is subject to the Army Act is to be tried for a court martial for an offence punishable with death. On the contrary, Rule 129 of the Army Rules which has been extracted above specifically deals with representation in a Summary Court Martial.In view of the specific provision of Rule 129, the Commanding Officer was evidently in error in declining the assistance of a lawyer on the ground that legalcould be admissible only where the offence was punishable withabove factual basis on which it was held that no prejudice had been caused to the defence of the appellant was evidently the foundation of the ultimate decision of this Court.In the present cae, the appellant had rendered seven years of service. He was pitted against his Commanding Officer. In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense.For these reasons, we are of the view that there was a clear violation of the principles of natural justice. The prejudice too is evident. The appellant was dismissed from service and sentenced to siximprisonment. Both his livelihood and liberty were taken away.
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STATE OF RAJASTHAN Vs. SHRI CHIRANJILAL | N. Santosh Hegde and Shivaraj V. Patil, JJ. 1. State of Rajasthan has preferred this appeal against the judgment of the High Court of Judicature for Rajasthan made in Criminal Appeal No. 428 of 1985 whereby the High Court allowed the appeal of the Respondent-herein (Appellant before it) and acquitted him of the charges and conviction awarded by the sessions court. 2. The facts leading to the appeal are that on 31st July, 1984, prosecution states that one Ratan Lal committed the murder of Chiranjilal at about 6.30 p.m. in front of the house of the deceased. The said incident, according to the prosecution, was witnessed by Tara Chand-P.W. 4, who is the uncle of the deceased and Phool Chand-P.W. 5, who is the brother of the deceased. The complaint-Ex. P-4 was lodged on the very same day and the investigation was conducted by Shri Ran Singh, S.H.O., police station, Pillani. 3. Learned Sessions Judge framed charges u/s 302, I.P.C. against the Respondent who pleaded not guilty and claimed to be tried. The prosecution, in support of its case, apart from examining P.W. 4 and P.W. 5 has also examined Ram Chandra, P.W. 6, who is the father of the deceased and has also relied upon the seizure of blood-stained clothes from the accused and also the blood-stained knife. Learned Sessions Judge accepted the evidence of the prosecution, convicted the Respondent for an offence u/s 302, I.P.C. and sentenced him to serve imprisonment for life. 4. Being aggrieved with the said judgment and conviction, the Appellant preferred an appeal before the High Court of Rajasthan. 5. The High Court, on re-appreciation of evidence came to the conclusion that the evidence of star witnesses of the prosecution, namely, P.W. 5 and P.W. 6 cannot be accepted on its face value and without any further corroboration primarily on the ground that they were very closely related to the deceased. P.W. 5 was direct brother of the deceased while P.W. 4 was the brother of the father of the deceased. The High Court, while considering the evidence of these witnesses, came to the conclusion that even according to the prosecution version, more than 10 to 14 people were present near the well where the incident took place where, according to P.W. 5, he was playing cards in their company. Non-examination of these witnesses was considered fatal for the prosecution case. Similarly, the evidence of P.W. 5 was not accepted by the High Court based on his own statement wherein he had stated that he and P.W. 4 had carried the injured, who subsequently died, to their house when he was still bleeding. The prosecution had failed to produce the blood-stained clothes of these witnesses, therefore, that also caused a substantial doubt in the case of the prosecution. Further, the High Court observed that even though the prosecution had admitted that there were elderly women, who witnessed the incident, they were also not examined by the police nor their statements were recorded nor were they cited as witnesses in the case. The High Court found fault with the prosecution for not giving any reasonable explanation for non-examination of these witnesses. 6. In regard to the recovery of blood-stained clothes from the accused, the High Court noticed that the accused though was arrested on 1st August, 1984, the said clothes were actually seized only on 3rd August, 1984. Therefore, the prosecution has failed to explain this delay which has caused a doubt on the seizure of the clothes. High Court not being convinced about the recovery of knife (Recovery Memo. Ex. P. 17) did not place reliance on this recovery also. The High Court, on re-consideration of the entire material on record, has come to the conclusion that it will not be safe to rely upon the prosecution case, and hence, allowed the appeal. 7. We, sitting in appeal, would not like to re-appreciate the evidence unless we are convinced that the appreciation of evidence of the High Court has been perverse. Having not found any such fault in the judgment of the High Court, we do not consider it to be a fit case for interference. | 0[ds]7. We, sitting in appeal, would not like to re-appreciate the evidence unless we are convinced that the appreciation of evidence of the High Court has been perverse. Having not found any such fault in the judgment of the High Court, we do not consider it to be a fit case for interference. | 0 | 791 | 63 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
N. Santosh Hegde and Shivaraj V. Patil, JJ. 1. State of Rajasthan has preferred this appeal against the judgment of the High Court of Judicature for Rajasthan made in Criminal Appeal No. 428 of 1985 whereby the High Court allowed the appeal of the Respondent-herein (Appellant before it) and acquitted him of the charges and conviction awarded by the sessions court. 2. The facts leading to the appeal are that on 31st July, 1984, prosecution states that one Ratan Lal committed the murder of Chiranjilal at about 6.30 p.m. in front of the house of the deceased. The said incident, according to the prosecution, was witnessed by Tara Chand-P.W. 4, who is the uncle of the deceased and Phool Chand-P.W. 5, who is the brother of the deceased. The complaint-Ex. P-4 was lodged on the very same day and the investigation was conducted by Shri Ran Singh, S.H.O., police station, Pillani. 3. Learned Sessions Judge framed charges u/s 302, I.P.C. against the Respondent who pleaded not guilty and claimed to be tried. The prosecution, in support of its case, apart from examining P.W. 4 and P.W. 5 has also examined Ram Chandra, P.W. 6, who is the father of the deceased and has also relied upon the seizure of blood-stained clothes from the accused and also the blood-stained knife. Learned Sessions Judge accepted the evidence of the prosecution, convicted the Respondent for an offence u/s 302, I.P.C. and sentenced him to serve imprisonment for life. 4. Being aggrieved with the said judgment and conviction, the Appellant preferred an appeal before the High Court of Rajasthan. 5. The High Court, on re-appreciation of evidence came to the conclusion that the evidence of star witnesses of the prosecution, namely, P.W. 5 and P.W. 6 cannot be accepted on its face value and without any further corroboration primarily on the ground that they were very closely related to the deceased. P.W. 5 was direct brother of the deceased while P.W. 4 was the brother of the father of the deceased. The High Court, while considering the evidence of these witnesses, came to the conclusion that even according to the prosecution version, more than 10 to 14 people were present near the well where the incident took place where, according to P.W. 5, he was playing cards in their company. Non-examination of these witnesses was considered fatal for the prosecution case. Similarly, the evidence of P.W. 5 was not accepted by the High Court based on his own statement wherein he had stated that he and P.W. 4 had carried the injured, who subsequently died, to their house when he was still bleeding. The prosecution had failed to produce the blood-stained clothes of these witnesses, therefore, that also caused a substantial doubt in the case of the prosecution. Further, the High Court observed that even though the prosecution had admitted that there were elderly women, who witnessed the incident, they were also not examined by the police nor their statements were recorded nor were they cited as witnesses in the case. The High Court found fault with the prosecution for not giving any reasonable explanation for non-examination of these witnesses. 6. In regard to the recovery of blood-stained clothes from the accused, the High Court noticed that the accused though was arrested on 1st August, 1984, the said clothes were actually seized only on 3rd August, 1984. Therefore, the prosecution has failed to explain this delay which has caused a doubt on the seizure of the clothes. High Court not being convinced about the recovery of knife (Recovery Memo. Ex. P. 17) did not place reliance on this recovery also. The High Court, on re-consideration of the entire material on record, has come to the conclusion that it will not be safe to rely upon the prosecution case, and hence, allowed the appeal. 7. We, sitting in appeal, would not like to re-appreciate the evidence unless we are convinced that the appreciation of evidence of the High Court has been perverse. Having not found any such fault in the judgment of the High Court, we do not consider it to be a fit case for interference.
### Response:
0
### Explanation:
7. We, sitting in appeal, would not like to re-appreciate the evidence unless we are convinced that the appreciation of evidence of the High Court has been perverse. Having not found any such fault in the judgment of the High Court, we do not consider it to be a fit case for interference.
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M.P.State Agro Industries Dev.Corpn.&Anr Vs. Jahan Khan | been highlighted in Indian Oil Corporation Ltd. & Anr. Vs. Ashok Kumar Arora and Lalit Popli Vs. Canara Bank & Ors. 6. Thus, the short question that arises for consideration is whether in the context of the Regulations governing the service conditions of the respondent, the recovery of the aforementioned amount and stoppage of three increments with cumulative effect is a major penalty and if so, the order of punishment is vitiated on any of the grounds noted above, warranting interference by the Court? 7. The Regulations relevant for the purpose of the instant case are as under: "If the Managing Director is satisfied about the charges levied, he shall grant a personal hearing to the employee concerned, and if necessary, take oral examination of the witnesses named by the employee in his reply before taking a final decision.An appeal shall:(a) Against orders of the Managing Director to the Chairman.(b) Against the order of the Chairman to the Board.(c) An aggrieved employee shall have a right to appeal provided it is preferred within 30 days of the receipt of the order against which the appeal is preferred. The appellate authority (except Board) shall decide the case within, 2 months from the date of the receipt of the appeal.The following punishments may be awarded for good and sufficient reasons, including breaches of any rules of conduct or for committing any of the offences mentioned in the Schedule according to gravity of each case:-“Class of misconductPunishmentAppealable or Non-appealableMinor Lapses(a) WarningNon-Appealableand(b) ReprimandNon-Appealabledelinquencies(c) Fine uptoNon-Appealable1/10th of payif the amount is not more than Rs. 5/-(d) Recovery from pay of whole or part of pecuniary loss caused to the Corporation by negligence or breach of orders if within Rs.50/-Non-AppealableActs of misconduct(a) Recovery from pay of whole or part of pecuniary loss caused to the Corporation by negligence or breach of orders if within Rs. 50/-Appealable(b) withholding Appealable increment for specific period(c) stoppage of promotionAppealable(d) reduction to a lower post or lower level payAppealable(e) termination of serviceAppealable(f) removalAppealable(g) dischargeAppealable(h) dismissalAppealable(i) disqualifying the incumbent from any employment in the Agro Ind. CorpnAppealable” 8. A bare reading of the scheme of the afore-extracted Regulations would show that there is a clear demarcation of quantum of punishment between the minor lapses, delinquencies and acts of misconduct. It is evident that having regard to the nature of acts of omission and commission, the punishment prescribed for minor lapses, and delinquencies, ostensibly not having perpetual effect, have been made non-appealable in comparison to the punishments for acts of misconduct, which include recovery of whole or a part of pecuniary loss, exceeding Rs.50/-, caused to the Corporation, withholding of increments for a specific period, termination of services, removal etc., which can all be characterized as major punishments. Precisely for this reason, all punishments falling in the latter category have been made appealable. The perceptive distinction in two sets of penalties, in our view, makes it abundantly clear that the Corporation has treated the punishments/penalties falling in the first category as minor punishments/penalties and the acts of misconduct, falling in the second category as major penalties. We may, however, hasten to add that it cannot be laid as a hard and fast rule that stoppage of increments, with or without hedge over it, is always to be treated as a major penalty, necessitating regular enquiry. It would depend on the Rules and Regulations governing the service conditions of the employee, though ordinarily, in the absence of specific Regulations, withholding of increments with cumulative effect is treated as a major penalty because it has a perpetual effect on the entire tenure of service of the employee. 9. Be that as it may, we are of the opinion that in the light of our interpretation of the afore noted Regulations, the imposition of penalty vide composite order dated 19th December, 1989, directing recovery of loss of Rs.16903.41 and stoppage of three increments with cumulative effect, is a major penalty, clearly envisaging a regular enquiry before punishing the respondent. Since admittedly this procedure was not followed, the High Court was justified in coming to the conclusion that imposition of the impugned penalty without holding enquiry was illegal and without jurisdiction.10. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See: Whirpool Corporation Vs. Registrar of Trade Marks, Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors. , State of H.P. Vs. Gujarat Ambuja Cement Ltd. and Sanjana M. Wig Vs. Hindustan Petroleum Corporation Ltd.).11. In the instant case, though it is true that the penalty order impugned in the writ petition was appealable in terms of the aforenoted Regulations but having coming to the conclusion that the order was per se illegal being violative of the principles of natural justice, it cannot be said that the High Court fell into an error in entertaining the writ petition filed by the respondent. | 0[ds]9. Be that as it may, we are of the opinion that in the light of our interpretation of the afore noted Regulations, the imposition of penalty vide composite order dated 19th December, 1989, directing recovery of loss of Rs.16903.41 and stoppage of three increments with cumulative effect, is a major penalty, clearly envisaging a regular enquiry before punishing the respondent. Since admittedly this procedure was not followed, the High Court was justified in coming to the conclusion that imposition of the impugned penalty without holding enquiry was illegal and without jurisdiction.10. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See: Whirpool Corporation Vs. Registrar of Trade Marks, Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors. , State of H.P. Vs. Gujarat Ambuja Cement Ltd. and Sanjana M. Wig Vs. Hindustan Petroleum Corporation Ltd.).11. In the instant case, though it is true that the penalty order impugned in the writ petition was appealable in terms of the aforenoted Regulations but having coming to the conclusion that the order was per se illegal being violative of the principles of natural justice, it cannot be said that the High Court fell into an error in entertaining the writ petition filed by the respondent. | 0 | 2,009 | 448 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
been highlighted in Indian Oil Corporation Ltd. & Anr. Vs. Ashok Kumar Arora and Lalit Popli Vs. Canara Bank & Ors. 6. Thus, the short question that arises for consideration is whether in the context of the Regulations governing the service conditions of the respondent, the recovery of the aforementioned amount and stoppage of three increments with cumulative effect is a major penalty and if so, the order of punishment is vitiated on any of the grounds noted above, warranting interference by the Court? 7. The Regulations relevant for the purpose of the instant case are as under: "If the Managing Director is satisfied about the charges levied, he shall grant a personal hearing to the employee concerned, and if necessary, take oral examination of the witnesses named by the employee in his reply before taking a final decision.An appeal shall:(a) Against orders of the Managing Director to the Chairman.(b) Against the order of the Chairman to the Board.(c) An aggrieved employee shall have a right to appeal provided it is preferred within 30 days of the receipt of the order against which the appeal is preferred. The appellate authority (except Board) shall decide the case within, 2 months from the date of the receipt of the appeal.The following punishments may be awarded for good and sufficient reasons, including breaches of any rules of conduct or for committing any of the offences mentioned in the Schedule according to gravity of each case:-“Class of misconductPunishmentAppealable or Non-appealableMinor Lapses(a) WarningNon-Appealableand(b) ReprimandNon-Appealabledelinquencies(c) Fine uptoNon-Appealable1/10th of payif the amount is not more than Rs. 5/-(d) Recovery from pay of whole or part of pecuniary loss caused to the Corporation by negligence or breach of orders if within Rs.50/-Non-AppealableActs of misconduct(a) Recovery from pay of whole or part of pecuniary loss caused to the Corporation by negligence or breach of orders if within Rs. 50/-Appealable(b) withholding Appealable increment for specific period(c) stoppage of promotionAppealable(d) reduction to a lower post or lower level payAppealable(e) termination of serviceAppealable(f) removalAppealable(g) dischargeAppealable(h) dismissalAppealable(i) disqualifying the incumbent from any employment in the Agro Ind. CorpnAppealable” 8. A bare reading of the scheme of the afore-extracted Regulations would show that there is a clear demarcation of quantum of punishment between the minor lapses, delinquencies and acts of misconduct. It is evident that having regard to the nature of acts of omission and commission, the punishment prescribed for minor lapses, and delinquencies, ostensibly not having perpetual effect, have been made non-appealable in comparison to the punishments for acts of misconduct, which include recovery of whole or a part of pecuniary loss, exceeding Rs.50/-, caused to the Corporation, withholding of increments for a specific period, termination of services, removal etc., which can all be characterized as major punishments. Precisely for this reason, all punishments falling in the latter category have been made appealable. The perceptive distinction in two sets of penalties, in our view, makes it abundantly clear that the Corporation has treated the punishments/penalties falling in the first category as minor punishments/penalties and the acts of misconduct, falling in the second category as major penalties. We may, however, hasten to add that it cannot be laid as a hard and fast rule that stoppage of increments, with or without hedge over it, is always to be treated as a major penalty, necessitating regular enquiry. It would depend on the Rules and Regulations governing the service conditions of the employee, though ordinarily, in the absence of specific Regulations, withholding of increments with cumulative effect is treated as a major penalty because it has a perpetual effect on the entire tenure of service of the employee. 9. Be that as it may, we are of the opinion that in the light of our interpretation of the afore noted Regulations, the imposition of penalty vide composite order dated 19th December, 1989, directing recovery of loss of Rs.16903.41 and stoppage of three increments with cumulative effect, is a major penalty, clearly envisaging a regular enquiry before punishing the respondent. Since admittedly this procedure was not followed, the High Court was justified in coming to the conclusion that imposition of the impugned penalty without holding enquiry was illegal and without jurisdiction.10. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See: Whirpool Corporation Vs. Registrar of Trade Marks, Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors. , State of H.P. Vs. Gujarat Ambuja Cement Ltd. and Sanjana M. Wig Vs. Hindustan Petroleum Corporation Ltd.).11. In the instant case, though it is true that the penalty order impugned in the writ petition was appealable in terms of the aforenoted Regulations but having coming to the conclusion that the order was per se illegal being violative of the principles of natural justice, it cannot be said that the High Court fell into an error in entertaining the writ petition filed by the respondent.
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0
### Explanation:
9. Be that as it may, we are of the opinion that in the light of our interpretation of the afore noted Regulations, the imposition of penalty vide composite order dated 19th December, 1989, directing recovery of loss of Rs.16903.41 and stoppage of three increments with cumulative effect, is a major penalty, clearly envisaging a regular enquiry before punishing the respondent. Since admittedly this procedure was not followed, the High Court was justified in coming to the conclusion that imposition of the impugned penalty without holding enquiry was illegal and without jurisdiction.10. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See: Whirpool Corporation Vs. Registrar of Trade Marks, Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors. , State of H.P. Vs. Gujarat Ambuja Cement Ltd. and Sanjana M. Wig Vs. Hindustan Petroleum Corporation Ltd.).11. In the instant case, though it is true that the penalty order impugned in the writ petition was appealable in terms of the aforenoted Regulations but having coming to the conclusion that the order was per se illegal being violative of the principles of natural justice, it cannot be said that the High Court fell into an error in entertaining the writ petition filed by the respondent.
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Mundrika Prasad Sinha Vs. State Of Bihar | explained earlier, a bunch of Government pleaders is perfectly permissible consistently with Section 2(7) and Order 27 rule (4) Civil Procedure Code. Nor do the Bihar rules regarding government pleaders help. They are purely administrative prescriptions and serve as guidelines and cannot found a legal right, apart from the fact that they do not contradict Governments power to appoint more than one Government Pleader. Allocation of work or control inter se is an internal arrangement and we see no error even in that behaviour. Not to have provided more government counsel when the volume of litigation demanded it, would have clogged the dockets in Court and helped one pleader to corner all the briefs without reference to expeditious or efficient disposals.11. Be that as it may, one of the major streams of litigation in which government finds itself entangled flows from land acquisition. The States developmental projects which necessarily must be large, involve acquisition of lands on a large scale. Bihar is no exception. Since compensation claims come in considerable number before the Civil courts, several lawyers have to be engaged by the State for expeditious attention to its court litigation. The State, appreciating this need and with a view to help the court liquidate the docket explosion, appointed more than one government p leader for every District, depending on the case flow. Thus, Government Pleaders and Assistant Government Pleaders were appointed according to administrative rules of the State. Each one is a Government Pleader under Sec. 2(7), Code of Civil Procedure.It is heartening to notice that the Bihar Government appoints these lawyers after consultation with the District Judge. It is in the best interest of the State that it should engage competent lawyers without hunting for political partisans regardless of capability. Public offices and Government Pleadership is one-shall not succumb to Tammany Hall or subtler spoils system, if purity in public office is a desideratum. After all, the State is expected to fig ht and win its cases and sheer patronage is misuse of power. One effective method of achieving this object is to act on the advice of the District Judge regarding the choice of Government pleaders. When there were several thousand cases in the Patna courts and hundreds of cases before a plurality of tribunals, it was but right that Government did not sacrifice the speedy conduct of cases by not appointing a number of pleaders on its behalf, for the sake of the lucrative practice of a s ingle government Pleader. It is inconceivable how he would have discharged his duties to the court and to his client if this crowd of land acquisition cases were posted in several courts more or less at the same time. Adjournment to suit advocates convenience becomes a bane when it is used only for augmentation of counsels income, resisting democratisation and distributial justice within the profession. These principles make poor appeal to, those who count, which is a pity.12. Coming to t he larger submission of counsel for the petitioner, we do recognise its importance in our era of infiltration of politicking even in forbidden areas. A Government pleader is more than an advocate for a litigant. He holds a public office. We recall with approval the observations a Division Bench of the Madras High Court made in Ramachandran v. Alagiriswami and regard the view there, expressed about a Government Pleaders office, as broadly correct even in the Bihar set-up." .... the duties of the Government Pleader, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which a Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the bill. The Rajasthan case does not take into account all the aspects of the matter.(36) The learned Advocate General argued that the Government Pleader, Madras is only an agent of the Government, that his duties are only to the Government who are his principles and that he owes no duty to the public at all and that for that reason he would not be the holder of a Public office.(37) It is difficult to accept this view. The contention of the learned Advocate General may have been less untenable if the duties of the Government Pleader were merely to conduct in courts cases to which Government are a party. But, as the rules stand, he has a number of other duties to discharge. Besides, even if his only duty is the conduct of cases in which Government have been impleaded, still as explained more t han once before the public are interested in the manner in which he discharges his duties....... ...... ......(90) I am clearly of opinion that having regard to the fact that the Government Pleader of this court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding.I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible" .In this view, ordering about a Government Pleader is obnoxious but nothing savouring of such conduct is made out although we must enter a caveat that Governments under our Constitution shall not play with Law Offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself. After all, a Government Pleader and, in a sense, every member of the legal profession, has a higher dedication to the people. | 0[ds]We fully appreciate the perspective presented by counsel. But before we come to that, let it be bluntly stated that if Government does an act offending the public office filled by a Government pleader what becomes the incumbent in the land of Gandhi is a dignified renunciation of office, not a chase for the lost briefs through the writ route. Moreover, the legal position is plain. As explained earlier, a bunch of Government pleaders is perfectly permissible consistently with Section 2(7) and Order 27 rule (4) Civil Procedure Code. Nor do the Bihar rules regarding government pleaders help. They are purely administrative prescriptions and serve as guidelines and cannot found a legal right, apart from the fact that they do not contradict Governments power to appoint more than one Government Pleader. Allocation of work or control inter se is an internal arrangement and we see no error even in that behaviour. Not to have provided more government counsel when the volume of litigation demanded it, would have clogged the dockets in Court and helped one pleader to corner all the briefs without reference to expeditious or efficientto t he larger submission of counsel for the petitioner, we do recognise its importance in our era of infiltration of politicking even in forbidden areas. A Government pleader is more than an advocate for a litigant. He holds a public office. We recall with approval the observations a Division Bench of the Madras High Court made in Ramachandran v. Alagiriswami and regard the view there, expressed about a Government Pleaders office, as broadly correct even in the BiharGovernment Pleaders and Assistant Government Pleaders were appointed according to administrative rules of the State. Each one is a Government Pleader under Sec. 2(7),Code of Civil Procedure.It is heartening to notice that the Bihar Government appoints these lawyers after consultation with the District Judge. It is in the best interest of the State that it should engage competent lawyers without hunting for political partisans regardless of capability. Public offices and Government Pleadership isnot succumb to Tammany Hall or subtler spoils system, if purity in public office is a desideratum. After all, the State is expected to fig ht and win its cases and sheer patronage is misuse of power. One effective method of achieving this object is to act on the advice of the District Judge regarding the choice of Government pleaders. When there were several thousand cases in the Patna courts and hundreds of cases before a plurality of tribunals, it was but right that Government did not sacrifice the speedy conduct of cases by not appointing a number of pleaders on its behalf, for the sake of the lucrative practice of a s ingle government Pleader. It is inconceivable how he would have discharged his duties to the court and to his client if this crowd of land acquisition cases were posted in several courts more or less at the same time. Adjournment to suit advocates convenience becomes a bane when it is used only for augmentation of counsels income, resisting democratisation and distributial justice within the profession. These principles make poor appeal to, those who count, which is a pity. | 0 | 3,090 | 579 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
explained earlier, a bunch of Government pleaders is perfectly permissible consistently with Section 2(7) and Order 27 rule (4) Civil Procedure Code. Nor do the Bihar rules regarding government pleaders help. They are purely administrative prescriptions and serve as guidelines and cannot found a legal right, apart from the fact that they do not contradict Governments power to appoint more than one Government Pleader. Allocation of work or control inter se is an internal arrangement and we see no error even in that behaviour. Not to have provided more government counsel when the volume of litigation demanded it, would have clogged the dockets in Court and helped one pleader to corner all the briefs without reference to expeditious or efficient disposals.11. Be that as it may, one of the major streams of litigation in which government finds itself entangled flows from land acquisition. The States developmental projects which necessarily must be large, involve acquisition of lands on a large scale. Bihar is no exception. Since compensation claims come in considerable number before the Civil courts, several lawyers have to be engaged by the State for expeditious attention to its court litigation. The State, appreciating this need and with a view to help the court liquidate the docket explosion, appointed more than one government p leader for every District, depending on the case flow. Thus, Government Pleaders and Assistant Government Pleaders were appointed according to administrative rules of the State. Each one is a Government Pleader under Sec. 2(7), Code of Civil Procedure.It is heartening to notice that the Bihar Government appoints these lawyers after consultation with the District Judge. It is in the best interest of the State that it should engage competent lawyers without hunting for political partisans regardless of capability. Public offices and Government Pleadership is one-shall not succumb to Tammany Hall or subtler spoils system, if purity in public office is a desideratum. After all, the State is expected to fig ht and win its cases and sheer patronage is misuse of power. One effective method of achieving this object is to act on the advice of the District Judge regarding the choice of Government pleaders. When there were several thousand cases in the Patna courts and hundreds of cases before a plurality of tribunals, it was but right that Government did not sacrifice the speedy conduct of cases by not appointing a number of pleaders on its behalf, for the sake of the lucrative practice of a s ingle government Pleader. It is inconceivable how he would have discharged his duties to the court and to his client if this crowd of land acquisition cases were posted in several courts more or less at the same time. Adjournment to suit advocates convenience becomes a bane when it is used only for augmentation of counsels income, resisting democratisation and distributial justice within the profession. These principles make poor appeal to, those who count, which is a pity.12. Coming to t he larger submission of counsel for the petitioner, we do recognise its importance in our era of infiltration of politicking even in forbidden areas. A Government pleader is more than an advocate for a litigant. He holds a public office. We recall with approval the observations a Division Bench of the Madras High Court made in Ramachandran v. Alagiriswami and regard the view there, expressed about a Government Pleaders office, as broadly correct even in the Bihar set-up." .... the duties of the Government Pleader, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which a Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the bill. The Rajasthan case does not take into account all the aspects of the matter.(36) The learned Advocate General argued that the Government Pleader, Madras is only an agent of the Government, that his duties are only to the Government who are his principles and that he owes no duty to the public at all and that for that reason he would not be the holder of a Public office.(37) It is difficult to accept this view. The contention of the learned Advocate General may have been less untenable if the duties of the Government Pleader were merely to conduct in courts cases to which Government are a party. But, as the rules stand, he has a number of other duties to discharge. Besides, even if his only duty is the conduct of cases in which Government have been impleaded, still as explained more t han once before the public are interested in the manner in which he discharges his duties....... ...... ......(90) I am clearly of opinion that having regard to the fact that the Government Pleader of this court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding.I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible" .In this view, ordering about a Government Pleader is obnoxious but nothing savouring of such conduct is made out although we must enter a caveat that Governments under our Constitution shall not play with Law Offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself. After all, a Government Pleader and, in a sense, every member of the legal profession, has a higher dedication to the people.
### Response:
0
### Explanation:
We fully appreciate the perspective presented by counsel. But before we come to that, let it be bluntly stated that if Government does an act offending the public office filled by a Government pleader what becomes the incumbent in the land of Gandhi is a dignified renunciation of office, not a chase for the lost briefs through the writ route. Moreover, the legal position is plain. As explained earlier, a bunch of Government pleaders is perfectly permissible consistently with Section 2(7) and Order 27 rule (4) Civil Procedure Code. Nor do the Bihar rules regarding government pleaders help. They are purely administrative prescriptions and serve as guidelines and cannot found a legal right, apart from the fact that they do not contradict Governments power to appoint more than one Government Pleader. Allocation of work or control inter se is an internal arrangement and we see no error even in that behaviour. Not to have provided more government counsel when the volume of litigation demanded it, would have clogged the dockets in Court and helped one pleader to corner all the briefs without reference to expeditious or efficientto t he larger submission of counsel for the petitioner, we do recognise its importance in our era of infiltration of politicking even in forbidden areas. A Government pleader is more than an advocate for a litigant. He holds a public office. We recall with approval the observations a Division Bench of the Madras High Court made in Ramachandran v. Alagiriswami and regard the view there, expressed about a Government Pleaders office, as broadly correct even in the BiharGovernment Pleaders and Assistant Government Pleaders were appointed according to administrative rules of the State. Each one is a Government Pleader under Sec. 2(7),Code of Civil Procedure.It is heartening to notice that the Bihar Government appoints these lawyers after consultation with the District Judge. It is in the best interest of the State that it should engage competent lawyers without hunting for political partisans regardless of capability. Public offices and Government Pleadership isnot succumb to Tammany Hall or subtler spoils system, if purity in public office is a desideratum. After all, the State is expected to fig ht and win its cases and sheer patronage is misuse of power. One effective method of achieving this object is to act on the advice of the District Judge regarding the choice of Government pleaders. When there were several thousand cases in the Patna courts and hundreds of cases before a plurality of tribunals, it was but right that Government did not sacrifice the speedy conduct of cases by not appointing a number of pleaders on its behalf, for the sake of the lucrative practice of a s ingle government Pleader. It is inconceivable how he would have discharged his duties to the court and to his client if this crowd of land acquisition cases were posted in several courts more or less at the same time. Adjournment to suit advocates convenience becomes a bane when it is used only for augmentation of counsels income, resisting democratisation and distributial justice within the profession. These principles make poor appeal to, those who count, which is a pity.
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Maharashtra General Kamgar Union & Others Vs. Pix Transmission Limited | perusal of the above quoted section would show that whereas a Settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding is binding only on the parties to the agreement, a settlement arrived at in the course of conciliation proceedings under the Act is binding not only on the parties to the industrial dispute but also on the other persons specified in clauses (b), (c) and (d) of subsection (3) of section 18 of the Act. We are fortified in this conclusion by a decision of this Court in Ramnagar Cane and Sugar Co. Ltd. vs. Jatin Chakravorty, 1960 (3) SCR 968 :(AIR 1960 SC 1012 ) where it was held as follows (at p. 10 15 of AIR) :"When an industrial dispute is thus raised and is decided either by settlement or by an award the scope and effect of its operation is prescribed by section 18 of the Act. Section 18(1) provides that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement, whereas section 18(3) provides that a settlement arrived at in the course of conciliation proceedings which has become enforceable shall be binding on all the parties specified in Cls. (a), (b), (c) and (d) of sub-section (3) section 18(3)(d) makes it clear that, where a party referred to in Cl. (a) or (b) is composed of workmen, all persons who are employed in the establishment or part of the establishment, as the case may be, to which the disputes relates on the date of the dispute and all persons who subsequently become employed in that establishment or part, would be bound by the settlement In order to bind the workman it is not necessary to show that the said workman belong to the Union which was a party to the dispute before the conciliator. The whole policy of section 18 appears to be to give an extended operation to the settlement arrived at in the course of conciliation proceedings. And that is the object with which four categories of persons bound by such settlement, are specified in section 18, sub-section (3).""14. Similar view seems to have been held by another Division Bench of this Court in The Jhagrakhan Collieries (P) Ltd. vs. G.C. Agrawal, 1975 (3) SCC 613 : (AIR 1975 SC 171 ).""15. The legal position emerging from the afore-mentioned provisions of the Act being clear, we now proceed to tackle the questions set out above.""16. As the first two questions are inseparably linked up, we propose to deal with them together. Although prima facie there seems to be considerable force in the Sanghs stand that if paras 2.3, 3.1 and 3.3 of the aforesaid agreement of December 14, 1973 arrived at, between the employees union and the appellant Company related only to the special pay and did not cover the Sanghs demand for variable Dearness Allowance linked to the Ahmedabad cost of living index, we do not consider it necessary to go into this question, as the said agreement not having been arrived at during the course of conciliation proceeding, it could not, according to section 18(1) of the Act bind any one other than the parties thereto. A fortiori, the fact that the employees union which had been duly recognised under the Code of Discipline arrived at the aforesaid agreement with the appellant Company could not operate as a legal impediment in the way of the Sangth (which was not a party to the agreement).to raise a demand or dispute with regard to the Variable Dearness Allowance linked to Ahmedabad cost of living index or affect the validity of the reference by the Government or the jurisdiction of the Industrial Tribunal to go into the dispute. The conclusion that minority union can validly raise an industrial dispute gains support from section 2(k) of the Act which does not restrict the ambit of the definition of "industrial dispute" to a dispute between an employer and recognised majority union but takes within its wide sweep may dispute or difference between employer and workmen including a minority union of workmen which is connected with employment or terms of employment or conditions of labour of workmen as well as the observations made by this Court in Workmen of Dharampal Premchand vs. Dharampal Premchand, 1965 (3) SCR 394 : (AIR 1966 SC 182 ).""17. It may also be relevant to mention in this connection that both the Counsel for the Employees Union and the Counsel for the appellant Company admitted before the Industrial Tribunal that the aforesaid agreement had been terminated by two months notice (See p.39 of the Industrial Tribunals Award). We have, therefore, no hesitation in holding that neither the Sangh was precluded from raising the demand or the dispute, nor was the Government debarred from making the reference nor was the Industrial Tribunals competence to go into the dispute and make the award affected in any manner. The first two questions are decided accordingly."18.On the perusal of the aforesaid judgments, in our view, following position clearly emerges;Firstly, if a settlement is under section 18(1) of the Industrial Disputes Act and the same is not binding on the workers who are not party to the said settlement. Secondly, a person who does not accept the settlement is not entitled to benefits of the said settlement. For the purpose of deriving benefits of the said settlement it is necessary that the workman must accept the said settlement, particularly, it is not permissible in law that the workman can claim the benefits of the settlement while he refuses to comply with obligations thereunder. Thirdly, in case settlement is arrived at under section 18(3) of the I.D. Act, in the course of conciliation proceeding, then settlement becomes binding on all the parties and all the workmen irrespective of the fact whether such workman has been accepted such settlement or not. | 1[ds]Counsel for the appellant thereafter relied upon another judgment of the Delhi High Court in the case of Usha Spg. and Wvg. Mills Association vs. Usha India and ors. reported in 1999 (1) CLR559. From para 21 of the said judgment, it is clear that the said judgment is against the appellant. In paras 12 and 13 of the said judgment the Court has considered the effect of the provisions of section 18(3) of the I.D. Act. We find that the view which we are taking is in consonance with the view which Delhi High Court has taken that the settlement under section 18(1) cannot be enforced by the parties who are not parties to such settlement. Thereafter,reliance is placed on the judgment of the learned Single Judge of this Court in the case of Sarva Shramik Sangh vs. V.V.F. Ltd., 2002 (1) CLR797. In para 6 of the said judgment, the learned Single Judge of this Court has considered and followed judgment of the Apex Court in the case of Herbertsonss case (supra). The learned Single Judge after considering the factors came to the conclusion that the settlement can be challenged by workmen who are not party to the settlement. In that event, if the settlement is just and fair this Court has power to bind other workers to such settlement. We are not at all disputing the said proposition of law. However, whether a union who is not a party to the settlement has a right to claim enforcement of the said agreement when the same is not acceptable to them and challenged in the pending proceedings. In the present case, it is not their case that they are accepting the said settlement. They have challenged the said settlement in the main complaint which is admittedly pending before the Industriald Counsel for thes also relied on judgment in the case of Cooper Engineering Ltd. vs. D.M. Aney and ors, 1971 (1) LLJIn the case of Tata Chemicals Ltd. vs. The Workmen, AIR 1978 SC 828 the Supreme Court has observed as under:"13. A bare perusal of the above quoted section would show that whereas a Settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding is binding only on the parties to the agreement, a settlement arrived at in the course of conciliation proceedings under the Act is binding not only on the parties to the industrial dispute but also on the other persons specified in clauses (b), (c) and (d) of subsection (3) of section 18 of the Act. We are fortified in this conclusion by a decision of this Court in Ramnagar Cane and Sugar Co. Ltd. vs. Jatin Chakravorty, 1960 (3) SCR 968 :(AIR 1960 SC 1012 ) where it was held as follows (at p. 10 15 of AIR) :"When an industrial dispute is thus raised and is decided either by settlement or by an award the scope and effect of its operation is prescribed by section 18 of the Act. Section 18(1) provides that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement, whereas section 18(3) provides that a settlement arrived at in the course of conciliation proceedings which has become enforceable shall be binding on all the parties specified in Cls. (a), (b), (c) and (d) of(3) section 18(3)(d) makes it clear that, where a party referred to in Cl. (a) or (b) is composed of workmen, all persons who are employed in the establishment or part of the establishment, as the case may be, to which the disputes relates on the date of the dispute and all persons who subsequently become employed in that establishment or part, would be bound by the settlement In order to bind the workman it is not necessary to show that the said workman belong to the Union which was a party to the dispute before the conciliator. The whole policy of section 18 appears to be to give an extended operation to the settlement arrived at in the course of conciliation proceedings. And that is the object with which four categories of persons bound by such settlement, are specified in section 18,(3).""14. Similar view seems to have been held by another Division Bench of this Court in The Jhagrakhan Collieries (P) Ltd. vs. G.C. Agrawal, 1975 (3) SCC 613 : (AIR 1975 SC 171 ).""15. The legal position emerging from theprovisions of the Act being clear, we now proceed to tackle the questions set out above.""16. As the first two questions are inseparably linked up, we propose to deal with them together. Although prima facie there seems to be considerable force in the Sanghs stand that if paras 2.3, 3.1 and 3.3 of the aforesaid agreement of December 14, 1973 arrived at, between the employees union and the appellant Company related only to the special pay and did not cover the Sanghs demand for variable Dearness Allowance linked to the Ahmedabad cost of living index, we do not consider it necessary to go into this question, as the said agreement not having been arrived at during the course of conciliation proceeding, it could not, according to section 18(1) of the Act bind any one other than the parties thereto. A fortiori, the fact that the employees union which had been duly recognised under the Code of Discipline arrived at the aforesaid agreement with the appellant Company could not operate as a legal impediment in the way of the Sangth (which was not a party to the agreement).to raise a demand or dispute with regard to the Variable Dearness Allowance linked to Ahmedabad cost of living index or affect the validity of the reference by the Government or the jurisdiction of the Industrial Tribunal to go into the dispute. The conclusion that minority union can validly raise an industrial dispute gains support from section 2(k) of the Act which does not restrict the ambit of the definition of "industrial dispute" to a dispute between an employer and recognised majority union but takes within its wide sweep may dispute or difference between employer and workmen including a minority union of workmen which is connected with employment or terms of employment or conditions of labour of workmen as well as the observations made by this Court in Workmen of Dharampal Premchand vs. Dharampal Premchand, 1965 (3) SCR 394 : (AIR 1966 SC 182 ).""17. It may also be relevant to mention in this connection that both the Counsel for the Employees Union and the Counsel for the appellant Company admitted before the Industrial Tribunal that the aforesaid agreement had been terminated by two months notice (See p.39 of the Industrial Tribunals Award). We have, therefore, no hesitation in holding that neither the Sangh was precluded from raising the demand or the dispute, nor was the Government debarred from making the reference nor was the Industrial Tribunals competence to go into the dispute and make the award affected in any manner. The first two questions are decided accordingly."18.On the perusal of the aforesaid judgments, in our view, following position clearly emerges;Firstly, if a settlement is under section 18(1) of the Industrial Disputes Act and the same is not binding on the workers who are not party to the said settlement. Secondly, a person who does not accept the settlement is not entitled to benefits of the said settlement. For the purpose of deriving benefits of the said settlement it is necessary that the workman must accept the said settlement, particularly, it is not permissible in law that the workman can claim the benefits of the settlement while he refuses to comply with obligations thereunder. Thirdly, in case settlement is arrived at under section 18(3) of the I.D. Act, in the course of conciliation proceeding, then settlement becomes binding on all the parties and all the workmen irrespective of the fact whether such workman has been accepted such settlement or not. | 1 | 4,686 | 1,542 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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perusal of the above quoted section would show that whereas a Settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding is binding only on the parties to the agreement, a settlement arrived at in the course of conciliation proceedings under the Act is binding not only on the parties to the industrial dispute but also on the other persons specified in clauses (b), (c) and (d) of subsection (3) of section 18 of the Act. We are fortified in this conclusion by a decision of this Court in Ramnagar Cane and Sugar Co. Ltd. vs. Jatin Chakravorty, 1960 (3) SCR 968 :(AIR 1960 SC 1012 ) where it was held as follows (at p. 10 15 of AIR) :"When an industrial dispute is thus raised and is decided either by settlement or by an award the scope and effect of its operation is prescribed by section 18 of the Act. Section 18(1) provides that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement, whereas section 18(3) provides that a settlement arrived at in the course of conciliation proceedings which has become enforceable shall be binding on all the parties specified in Cls. (a), (b), (c) and (d) of sub-section (3) section 18(3)(d) makes it clear that, where a party referred to in Cl. (a) or (b) is composed of workmen, all persons who are employed in the establishment or part of the establishment, as the case may be, to which the disputes relates on the date of the dispute and all persons who subsequently become employed in that establishment or part, would be bound by the settlement In order to bind the workman it is not necessary to show that the said workman belong to the Union which was a party to the dispute before the conciliator. The whole policy of section 18 appears to be to give an extended operation to the settlement arrived at in the course of conciliation proceedings. And that is the object with which four categories of persons bound by such settlement, are specified in section 18, sub-section (3).""14. Similar view seems to have been held by another Division Bench of this Court in The Jhagrakhan Collieries (P) Ltd. vs. G.C. Agrawal, 1975 (3) SCC 613 : (AIR 1975 SC 171 ).""15. The legal position emerging from the afore-mentioned provisions of the Act being clear, we now proceed to tackle the questions set out above.""16. As the first two questions are inseparably linked up, we propose to deal with them together. Although prima facie there seems to be considerable force in the Sanghs stand that if paras 2.3, 3.1 and 3.3 of the aforesaid agreement of December 14, 1973 arrived at, between the employees union and the appellant Company related only to the special pay and did not cover the Sanghs demand for variable Dearness Allowance linked to the Ahmedabad cost of living index, we do not consider it necessary to go into this question, as the said agreement not having been arrived at during the course of conciliation proceeding, it could not, according to section 18(1) of the Act bind any one other than the parties thereto. A fortiori, the fact that the employees union which had been duly recognised under the Code of Discipline arrived at the aforesaid agreement with the appellant Company could not operate as a legal impediment in the way of the Sangth (which was not a party to the agreement).to raise a demand or dispute with regard to the Variable Dearness Allowance linked to Ahmedabad cost of living index or affect the validity of the reference by the Government or the jurisdiction of the Industrial Tribunal to go into the dispute. The conclusion that minority union can validly raise an industrial dispute gains support from section 2(k) of the Act which does not restrict the ambit of the definition of "industrial dispute" to a dispute between an employer and recognised majority union but takes within its wide sweep may dispute or difference between employer and workmen including a minority union of workmen which is connected with employment or terms of employment or conditions of labour of workmen as well as the observations made by this Court in Workmen of Dharampal Premchand vs. Dharampal Premchand, 1965 (3) SCR 394 : (AIR 1966 SC 182 ).""17. It may also be relevant to mention in this connection that both the Counsel for the Employees Union and the Counsel for the appellant Company admitted before the Industrial Tribunal that the aforesaid agreement had been terminated by two months notice (See p.39 of the Industrial Tribunals Award). We have, therefore, no hesitation in holding that neither the Sangh was precluded from raising the demand or the dispute, nor was the Government debarred from making the reference nor was the Industrial Tribunals competence to go into the dispute and make the award affected in any manner. The first two questions are decided accordingly."18.On the perusal of the aforesaid judgments, in our view, following position clearly emerges;Firstly, if a settlement is under section 18(1) of the Industrial Disputes Act and the same is not binding on the workers who are not party to the said settlement. Secondly, a person who does not accept the settlement is not entitled to benefits of the said settlement. For the purpose of deriving benefits of the said settlement it is necessary that the workman must accept the said settlement, particularly, it is not permissible in law that the workman can claim the benefits of the settlement while he refuses to comply with obligations thereunder. Thirdly, in case settlement is arrived at under section 18(3) of the I.D. Act, in the course of conciliation proceeding, then settlement becomes binding on all the parties and all the workmen irrespective of the fact whether such workman has been accepted such settlement or not.
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of the above quoted section would show that whereas a Settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding is binding only on the parties to the agreement, a settlement arrived at in the course of conciliation proceedings under the Act is binding not only on the parties to the industrial dispute but also on the other persons specified in clauses (b), (c) and (d) of subsection (3) of section 18 of the Act. We are fortified in this conclusion by a decision of this Court in Ramnagar Cane and Sugar Co. Ltd. vs. Jatin Chakravorty, 1960 (3) SCR 968 :(AIR 1960 SC 1012 ) where it was held as follows (at p. 10 15 of AIR) :"When an industrial dispute is thus raised and is decided either by settlement or by an award the scope and effect of its operation is prescribed by section 18 of the Act. Section 18(1) provides that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement, whereas section 18(3) provides that a settlement arrived at in the course of conciliation proceedings which has become enforceable shall be binding on all the parties specified in Cls. (a), (b), (c) and (d) of(3) section 18(3)(d) makes it clear that, where a party referred to in Cl. (a) or (b) is composed of workmen, all persons who are employed in the establishment or part of the establishment, as the case may be, to which the disputes relates on the date of the dispute and all persons who subsequently become employed in that establishment or part, would be bound by the settlement In order to bind the workman it is not necessary to show that the said workman belong to the Union which was a party to the dispute before the conciliator. The whole policy of section 18 appears to be to give an extended operation to the settlement arrived at in the course of conciliation proceedings. And that is the object with which four categories of persons bound by such settlement, are specified in section 18,(3).""14. Similar view seems to have been held by another Division Bench of this Court in The Jhagrakhan Collieries (P) Ltd. vs. G.C. Agrawal, 1975 (3) SCC 613 : (AIR 1975 SC 171 ).""15. The legal position emerging from theprovisions of the Act being clear, we now proceed to tackle the questions set out above.""16. As the first two questions are inseparably linked up, we propose to deal with them together. Although prima facie there seems to be considerable force in the Sanghs stand that if paras 2.3, 3.1 and 3.3 of the aforesaid agreement of December 14, 1973 arrived at, between the employees union and the appellant Company related only to the special pay and did not cover the Sanghs demand for variable Dearness Allowance linked to the Ahmedabad cost of living index, we do not consider it necessary to go into this question, as the said agreement not having been arrived at during the course of conciliation proceeding, it could not, according to section 18(1) of the Act bind any one other than the parties thereto. A fortiori, the fact that the employees union which had been duly recognised under the Code of Discipline arrived at the aforesaid agreement with the appellant Company could not operate as a legal impediment in the way of the Sangth (which was not a party to the agreement).to raise a demand or dispute with regard to the Variable Dearness Allowance linked to Ahmedabad cost of living index or affect the validity of the reference by the Government or the jurisdiction of the Industrial Tribunal to go into the dispute. The conclusion that minority union can validly raise an industrial dispute gains support from section 2(k) of the Act which does not restrict the ambit of the definition of "industrial dispute" to a dispute between an employer and recognised majority union but takes within its wide sweep may dispute or difference between employer and workmen including a minority union of workmen which is connected with employment or terms of employment or conditions of labour of workmen as well as the observations made by this Court in Workmen of Dharampal Premchand vs. Dharampal Premchand, 1965 (3) SCR 394 : (AIR 1966 SC 182 ).""17. It may also be relevant to mention in this connection that both the Counsel for the Employees Union and the Counsel for the appellant Company admitted before the Industrial Tribunal that the aforesaid agreement had been terminated by two months notice (See p.39 of the Industrial Tribunals Award). We have, therefore, no hesitation in holding that neither the Sangh was precluded from raising the demand or the dispute, nor was the Government debarred from making the reference nor was the Industrial Tribunals competence to go into the dispute and make the award affected in any manner. The first two questions are decided accordingly."18.On the perusal of the aforesaid judgments, in our view, following position clearly emerges;Firstly, if a settlement is under section 18(1) of the Industrial Disputes Act and the same is not binding on the workers who are not party to the said settlement. Secondly, a person who does not accept the settlement is not entitled to benefits of the said settlement. For the purpose of deriving benefits of the said settlement it is necessary that the workman must accept the said settlement, particularly, it is not permissible in law that the workman can claim the benefits of the settlement while he refuses to comply with obligations thereunder. Thirdly, in case settlement is arrived at under section 18(3) of the I.D. Act, in the course of conciliation proceeding, then settlement becomes binding on all the parties and all the workmen irrespective of the fact whether such workman has been accepted such settlement or not.
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Maharashtra State Electricity Board And Thestate Of Maharas Vs. Nagpur Electric Light And Power Company Ltd.& Anr | printing mistake and the true word was on. The other interpretation was that two dates had been provided for the exercise of the option; one, the expiration of ten years from Amy 6, 1947, the other being May 4, 1957. Thus there were genuine doubts about the real date and if the State Government sought to clarify the point it cannot be said that it made an unreasonable demand on the licensee. Every licensee, under the Electricity Act, 1910 or the earlier Act, knew that the statute gave an option to the State Government or a local authority or some board to purchase, and that option had to be exercised after the expiration of certain periods mentioned in the license. So it was not a case where Government was providing for the option to purchase which was not originally intended to be given. We are unable to appreciate the opinion of the High Court that the "amendment effected in 1966 stating that the option to purchase under the act shall be exercisable on the expiration of the period of ten years on 4-5-1967, is saying something which is meaningless and unenforceable." The High Court seems to think that the period of 10 years starting with the commencement of that period on May 6, 1947 could never end on May 4, 1957. But this was exactly the reason why the amendment was sought to be made in the license. May 6, 1947 was a date which had no relevance once the amendments of 1947 are taken into consideration. The amendments of 1947 all the time speak of May 4, 1947 and not May 6, 1947. The date May 6, 1947 wad derived by the following process of reasoning. The original license provide4d that "the right to purchase (para (g)) the undertaking, in respect of which the license is granted, shall for the purposes of the provisions in this behalf contained in the said Act endure after the following periods, that is to say:-"(i) after 42 years from the commencement of this Licence. (ii) After every subsequent period of 10 years. The terms of such purchase as aforesaid shall be those set forth in Section 7 of the Act." Para 4 of the original license provided that "this License shall come into force and have effect upon the day when a notification confirming it is published in the Central Provinces Gazette, and that day shall for the purpose of the said Act be deemed to be the commencement of this License. " It is this Para 4 that created the difficulty because although the notification is dated Amy 4, 1905, it was published on May 6, 1905. But when the license was amended in 1947 with the consent of the licensee it proceeded on the basis that the 42 years period expired on May 3, 1947, because throughout the crucial effective date in the amendments is May 4, 1947. 14. It seems to us that after the amendments Para 4 of the original license ceased to have effect for the purposes of construing the license as amended in 1947 and subsequently. 15. This takes us to the question whether the notice dated April 26, 1966 is in accordance with law. For the sake of convenience we may set out clause 3, paragraph (o) (I) as amended:"3 (o) (I) The option of purchase given by sub-section (1) of Section 7 of the Act shall be exercisable on the expiration of the period of ten years on the 4th May 1957, and the expiration of every subsequent period of ten years during the continuance of this license." 16. It is the case of the licensee that the date in the notice, viz, the midnight of 3/4th May, 1967, is not in compliance with law and the terms of the license. 17. Mr. Sorabjee further submitted the following propositions:(i) A day is regarded as indivisible period and the law does not regard fraction of a day; (ii) Person for whose benefit period is prescribed is entitled to the benefit of the entire period. (iii) Day of the happening of an event or the doing of an Act ought to be excluded rather than included. (iv) Notice under Section 6 is a condition precedent and must be strictly construed. He also referred to us some authorities in support of these propositions. We need not quarrel with these propositions but the first three must be regarded as ordinary principles of constructions and yield to the wording and the context of the instrument. 18. It seems to us that if Cl. 3, paragraph (o) (I) is interpreted in the light of the rest of the amendments made in the license in 1947, it is quite clear that the previous period was deemed to have expired on May 3, 1947 and the fresh period started on 1947 and the fresh period started on May 4, 1947 and the subsequent periods of 10 years ended on May 3, 1957 and May 3, 1967. It is impossible to read the license as amended in 1947 in any way other than that it was agreed that the period of 10 years mentioned in the license would start from May 4, 1947. The details of distribution system (Para 2) extracted above), the valuation of assets as on May 4, 1947 and other clauses extracted above all point to this conclusion. 19. It was pointed out that the license still talked of Section 7 of the Electricity Act. Why was this not amended when it was under Section 6, as inserted in 1959, that the option to purchase became exercisable? It seems to us that it was rightly not amended because the license still provided for the starting of the period of 10 years from May 4, 1947. This could only be provided for while the old Section 7 stood. 20. It seems to us that the notice dated April 26, 1966 was in accordance with the terms of the licence and the law. | 1[ds]14. It seems to us that after the amendments Para 4 of the original license ceased to have effect for the purposes of construing the license as amended in 1947 and subsequently18. It seems to us that if Cl. 3, paragraph (o) (I) is interpreted in the light of the rest of the amendments made in the license in 1947, it is quite clear that the previous period was deemed to have expired on May 3, 1947 and the fresh period started on 1947 and the fresh period started on May 4, 1947 and the subsequent periods of 10 years ended on May 3, 1957 and May 3, 1967. It is impossible to read the license as amended in 1947 in any way other than that it was agreed that the period of 10 years mentioned in the license would start from May 4, 1947. The details of distribution system (Para 2) extracted above), the valuation of assets as on May 4, 1947 and other clauses extracted above all point to this conclusion19. It was pointed out that the license still talked of Section 7 of the Electricity Act. Why was this not amended when it was under Section 6, as inserted in 1959, that the option to purchase became exercisable? It seems to us that it was rightly not amended because the license still provided for the starting of the period of 10 years from May 4, 1947. This could only be provided for while the old Section 7 stood20. It seems to us that the notice dated April 26, 1966 was in accordance with the terms of the licence and the law. | 1 | 3,562 | 309 | ### Instruction:
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printing mistake and the true word was on. The other interpretation was that two dates had been provided for the exercise of the option; one, the expiration of ten years from Amy 6, 1947, the other being May 4, 1957. Thus there were genuine doubts about the real date and if the State Government sought to clarify the point it cannot be said that it made an unreasonable demand on the licensee. Every licensee, under the Electricity Act, 1910 or the earlier Act, knew that the statute gave an option to the State Government or a local authority or some board to purchase, and that option had to be exercised after the expiration of certain periods mentioned in the license. So it was not a case where Government was providing for the option to purchase which was not originally intended to be given. We are unable to appreciate the opinion of the High Court that the "amendment effected in 1966 stating that the option to purchase under the act shall be exercisable on the expiration of the period of ten years on 4-5-1967, is saying something which is meaningless and unenforceable." The High Court seems to think that the period of 10 years starting with the commencement of that period on May 6, 1947 could never end on May 4, 1957. But this was exactly the reason why the amendment was sought to be made in the license. May 6, 1947 was a date which had no relevance once the amendments of 1947 are taken into consideration. The amendments of 1947 all the time speak of May 4, 1947 and not May 6, 1947. The date May 6, 1947 wad derived by the following process of reasoning. The original license provide4d that "the right to purchase (para (g)) the undertaking, in respect of which the license is granted, shall for the purposes of the provisions in this behalf contained in the said Act endure after the following periods, that is to say:-"(i) after 42 years from the commencement of this Licence. (ii) After every subsequent period of 10 years. The terms of such purchase as aforesaid shall be those set forth in Section 7 of the Act." Para 4 of the original license provided that "this License shall come into force and have effect upon the day when a notification confirming it is published in the Central Provinces Gazette, and that day shall for the purpose of the said Act be deemed to be the commencement of this License. " It is this Para 4 that created the difficulty because although the notification is dated Amy 4, 1905, it was published on May 6, 1905. But when the license was amended in 1947 with the consent of the licensee it proceeded on the basis that the 42 years period expired on May 3, 1947, because throughout the crucial effective date in the amendments is May 4, 1947. 14. It seems to us that after the amendments Para 4 of the original license ceased to have effect for the purposes of construing the license as amended in 1947 and subsequently. 15. This takes us to the question whether the notice dated April 26, 1966 is in accordance with law. For the sake of convenience we may set out clause 3, paragraph (o) (I) as amended:"3 (o) (I) The option of purchase given by sub-section (1) of Section 7 of the Act shall be exercisable on the expiration of the period of ten years on the 4th May 1957, and the expiration of every subsequent period of ten years during the continuance of this license." 16. It is the case of the licensee that the date in the notice, viz, the midnight of 3/4th May, 1967, is not in compliance with law and the terms of the license. 17. Mr. Sorabjee further submitted the following propositions:(i) A day is regarded as indivisible period and the law does not regard fraction of a day; (ii) Person for whose benefit period is prescribed is entitled to the benefit of the entire period. (iii) Day of the happening of an event or the doing of an Act ought to be excluded rather than included. (iv) Notice under Section 6 is a condition precedent and must be strictly construed. He also referred to us some authorities in support of these propositions. We need not quarrel with these propositions but the first three must be regarded as ordinary principles of constructions and yield to the wording and the context of the instrument. 18. It seems to us that if Cl. 3, paragraph (o) (I) is interpreted in the light of the rest of the amendments made in the license in 1947, it is quite clear that the previous period was deemed to have expired on May 3, 1947 and the fresh period started on 1947 and the fresh period started on May 4, 1947 and the subsequent periods of 10 years ended on May 3, 1957 and May 3, 1967. It is impossible to read the license as amended in 1947 in any way other than that it was agreed that the period of 10 years mentioned in the license would start from May 4, 1947. The details of distribution system (Para 2) extracted above), the valuation of assets as on May 4, 1947 and other clauses extracted above all point to this conclusion. 19. It was pointed out that the license still talked of Section 7 of the Electricity Act. Why was this not amended when it was under Section 6, as inserted in 1959, that the option to purchase became exercisable? It seems to us that it was rightly not amended because the license still provided for the starting of the period of 10 years from May 4, 1947. This could only be provided for while the old Section 7 stood. 20. It seems to us that the notice dated April 26, 1966 was in accordance with the terms of the licence and the law.
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14. It seems to us that after the amendments Para 4 of the original license ceased to have effect for the purposes of construing the license as amended in 1947 and subsequently18. It seems to us that if Cl. 3, paragraph (o) (I) is interpreted in the light of the rest of the amendments made in the license in 1947, it is quite clear that the previous period was deemed to have expired on May 3, 1947 and the fresh period started on 1947 and the fresh period started on May 4, 1947 and the subsequent periods of 10 years ended on May 3, 1957 and May 3, 1967. It is impossible to read the license as amended in 1947 in any way other than that it was agreed that the period of 10 years mentioned in the license would start from May 4, 1947. The details of distribution system (Para 2) extracted above), the valuation of assets as on May 4, 1947 and other clauses extracted above all point to this conclusion19. It was pointed out that the license still talked of Section 7 of the Electricity Act. Why was this not amended when it was under Section 6, as inserted in 1959, that the option to purchase became exercisable? It seems to us that it was rightly not amended because the license still provided for the starting of the period of 10 years from May 4, 1947. This could only be provided for while the old Section 7 stood20. It seems to us that the notice dated April 26, 1966 was in accordance with the terms of the licence and the law.
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Rohit Pulp and Paper Mills Limited Vs. Collector of Central Excise, Baroda | with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider. We are not impressed by this argument. It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with worded of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service." * This principle has been applied in a number of contexts in judicial decisions where the Court in clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used. The cases are too numerous to need discussion here. It should be sufficient to refer to one of them by way of illustration. In Rainbow Steels Ltd. v. CST ( 1981 (2) SCC 141 this Court had to understand the meaning of the word old in the context of an entry in a taxing tariff which read thus "Old, discarded, unserviceable or absolute machinery, stores or vehicles including waste products ......." Though the tariff item started with the use of the wide word old, the Court came to the conclusion that "in order to fall within the expression old machinery occurring in the entry, the machinery must be old machinery in the sense that it has become non-functional or non-usable". In other words, not the mere age of the machinery, which would be relevant in the wider sense, but he condition of the machinery analogous to that indicated by the words following it, was considered relevant for the purposes of the statute. 13. The maxim of noscitur a sociis has been described by Diplock, C.J. as a "treacherous one unless one knows the societas to which the socii belong" (vide : Letang v. Cooper ((1965) 1 QB 232 : 1964 (2) ALLER 929 The learned Solicitor General also warns that one should not be carried away by labels and Latin maxims when the word to be interpreted is clear and has a wide meaning. We entirely agree that these maxims and precedents are not to be mechanically applied; they are of assistance only insofar as they furnish guidance by compendiously summing up principles based on rules of common sense and logic. As explained in Collector of Central Excise v. Parle Exports (P) Ltd. ( 1989 (1) SCC 345 in interpreting the scope of any notification, the court has first to keep in mind the object and purpose of the notification. All parts of it should be read harmoniously in aid of, and not in derogation of, that purpose. In this case, the aim and object of the notification is to grant a concession to small scale factories which manufacture paper with unconventional raw materials. The question naturally arises : Could there have been any particular object intended to be achieved by introducing the exceptions set out in the proviso ? Instead of proceeding on the premise that it is not necessary to look for any reason in a taxing statute, it is necessary to have a closer look at the wording of the proviso. If the proviso had referred only to coated paper, no special object or purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exemption only coated paper manufactured by these factories from the purview of the exemption. But the notification excepts not one but a group of items. If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them again, it may be permissible to give the exceptions their widest latitude. But when four of them - undoubtedly, at least three of them - can be brought under an intelligible classification and it is also conceivable that the government might well have thought that these small scale factories should not be eligible for the concession contemplated by the notification where they manufacture paper catering to industrial purposes, there is a purpose in the limitation prescribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification. In our view, the only reasonable way of interpreting the proviso is by understanding the words coated paper in a narrower sense consistent with the other expressions used therein. 14. In the view we have taken it is unnecessary to consider the other contentions urged before us : (i) whether the words "(including waxed paper)" are words indicative of the limitation sought to be placed on the words "coated paper" or they are only intended to make it clear that even paper impregnated with wax will not be entitled to exemption; and (ii) whether, if the notification is capable of two equally plausible interpretations, the one in favour of the subject should be upheld or the one taken by the Tribunal should be confirmed. 15. For the reasons discussed above, we accept the appellants submission that coated paper in the second proviso refers only to coated paper used for industrial purposes and not to coated varieties of printing and writing paper. The Tribunals order is set aside and the appellant held entitled to the concessional rates specified in Notification No. 25/84. | 1[ds]12. The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established. In the context with which we are concerned, we can legitimately draw upon the "noscitur a sociis" principle. This expression simply means that "the meaningrd is to be judged by the company it keeps." Gajendragadkar, J. explained the scope of the rule in State of Bombay v. Hospital Mazdoor Sabha ( 1960 (2) SCR 866 in the following words : (SCR pp.rule, according to Maxwell, means that, when two or more words which are susceptibles meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in "Words and Phrases" (Vol. XIV, p. 207) : "Associated words take their meaninger under the doctrine of noscitur a sociis, the philosophy of which is that the meaningul word may be ascertained by reference to the meaning of words associated with it; such doctrine isthe maxim ejusdem generis". In fact the latter maxim "is only an illustration or specific application of the broader maxim noscitur a sociis". The argument is that certain essential features or attributes are invariably associated with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider. We are not impressed by this argument. It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with worded of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of theer import is doubtful; but, where the object of the legislature in using wider words is clear and free, the rule of construction in question cannot be pressed into service."principle has been applied in a number of contexts in judicial decisions where the Court in clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used. The cases are too numerous to need discussion here. It should be sufficient to refer to one of them by way of illustration. In Rainbow Steels Ltd. v. CST ( 1981 (2) SCC 141 this Court had to understand the meaning of the word old in the contextn entry in a taxing tariff which readdiscarded, unserviceable or absolute machinery, stores or vehicles including waste productsthe tariff item started with the use of the wide word old, the Court came to the conclusion that "in order to fall within the expression old machinery occurring in the entry, the machinery must be old machinery in the sense that it has become non-functional or non-usable". In other words, not the mere age of the machinery, which would be relevant in the wider sense, but he condition of the machinery analogous to that indicated by the words following it, was considered relevant for the purposes of thed of proceeding on the premise that it is not necessary to look for any reason in a taxing statute, it is necessary to have a closer look at the wording of the proviso. If the proviso had referred only to coated paper, no special object or purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exemption only coated paper manufactured by these factories from the purview of the exemption. But the notification excepts not one but a group of items. If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them again, it may be permissible to give the exceptions their widest latitude. But when four of them - undoubtedly, at least three of them - can be brought under an intelligible classification and it is also conceivable that the government might well have thought that these small scale factories should not be eligible for the concession contemplated by the notification where they manufacture paper catering to industrial purposes, there is a purpose in the limitation prescribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification. In our view, the only reasonable way of interpreting the proviso is by understanding the words coated paper in a narrower sense consistent with the other expressions usedIn the view we have taken it is unnecessary to consider the other contentions urged before us : (i) whether the words "(including waxed paper)" aree of the limitation sought to be placed on the words "coated paper" or they are only intended to make it clear that even paper impregnated with wax will not be entitled to exemption; and (ii) whether, if the notification is capable of two equally plausible interpretations, the one in favour of the subject should be upheld or the one taken by the Tribunal should be confirmed | 1 | 4,897 | 1,019 | ### Instruction:
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with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider. We are not impressed by this argument. It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with worded of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service." * This principle has been applied in a number of contexts in judicial decisions where the Court in clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used. The cases are too numerous to need discussion here. It should be sufficient to refer to one of them by way of illustration. In Rainbow Steels Ltd. v. CST ( 1981 (2) SCC 141 this Court had to understand the meaning of the word old in the context of an entry in a taxing tariff which read thus "Old, discarded, unserviceable or absolute machinery, stores or vehicles including waste products ......." Though the tariff item started with the use of the wide word old, the Court came to the conclusion that "in order to fall within the expression old machinery occurring in the entry, the machinery must be old machinery in the sense that it has become non-functional or non-usable". In other words, not the mere age of the machinery, which would be relevant in the wider sense, but he condition of the machinery analogous to that indicated by the words following it, was considered relevant for the purposes of the statute. 13. The maxim of noscitur a sociis has been described by Diplock, C.J. as a "treacherous one unless one knows the societas to which the socii belong" (vide : Letang v. Cooper ((1965) 1 QB 232 : 1964 (2) ALLER 929 The learned Solicitor General also warns that one should not be carried away by labels and Latin maxims when the word to be interpreted is clear and has a wide meaning. We entirely agree that these maxims and precedents are not to be mechanically applied; they are of assistance only insofar as they furnish guidance by compendiously summing up principles based on rules of common sense and logic. As explained in Collector of Central Excise v. Parle Exports (P) Ltd. ( 1989 (1) SCC 345 in interpreting the scope of any notification, the court has first to keep in mind the object and purpose of the notification. All parts of it should be read harmoniously in aid of, and not in derogation of, that purpose. In this case, the aim and object of the notification is to grant a concession to small scale factories which manufacture paper with unconventional raw materials. The question naturally arises : Could there have been any particular object intended to be achieved by introducing the exceptions set out in the proviso ? Instead of proceeding on the premise that it is not necessary to look for any reason in a taxing statute, it is necessary to have a closer look at the wording of the proviso. If the proviso had referred only to coated paper, no special object or purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exemption only coated paper manufactured by these factories from the purview of the exemption. But the notification excepts not one but a group of items. If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them again, it may be permissible to give the exceptions their widest latitude. But when four of them - undoubtedly, at least three of them - can be brought under an intelligible classification and it is also conceivable that the government might well have thought that these small scale factories should not be eligible for the concession contemplated by the notification where they manufacture paper catering to industrial purposes, there is a purpose in the limitation prescribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification. In our view, the only reasonable way of interpreting the proviso is by understanding the words coated paper in a narrower sense consistent with the other expressions used therein. 14. In the view we have taken it is unnecessary to consider the other contentions urged before us : (i) whether the words "(including waxed paper)" are words indicative of the limitation sought to be placed on the words "coated paper" or they are only intended to make it clear that even paper impregnated with wax will not be entitled to exemption; and (ii) whether, if the notification is capable of two equally plausible interpretations, the one in favour of the subject should be upheld or the one taken by the Tribunal should be confirmed. 15. For the reasons discussed above, we accept the appellants submission that coated paper in the second proviso refers only to coated paper used for industrial purposes and not to coated varieties of printing and writing paper. The Tribunals order is set aside and the appellant held entitled to the concessional rates specified in Notification No. 25/84.
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12. The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established. In the context with which we are concerned, we can legitimately draw upon the "noscitur a sociis" principle. This expression simply means that "the meaningrd is to be judged by the company it keeps." Gajendragadkar, J. explained the scope of the rule in State of Bombay v. Hospital Mazdoor Sabha ( 1960 (2) SCR 866 in the following words : (SCR pp.rule, according to Maxwell, means that, when two or more words which are susceptibles meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in "Words and Phrases" (Vol. XIV, p. 207) : "Associated words take their meaninger under the doctrine of noscitur a sociis, the philosophy of which is that the meaningul word may be ascertained by reference to the meaning of words associated with it; such doctrine isthe maxim ejusdem generis". In fact the latter maxim "is only an illustration or specific application of the broader maxim noscitur a sociis". The argument is that certain essential features or attributes are invariably associated with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider. We are not impressed by this argument. It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with worded of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of theer import is doubtful; but, where the object of the legislature in using wider words is clear and free, the rule of construction in question cannot be pressed into service."principle has been applied in a number of contexts in judicial decisions where the Court in clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used. The cases are too numerous to need discussion here. It should be sufficient to refer to one of them by way of illustration. In Rainbow Steels Ltd. v. CST ( 1981 (2) SCC 141 this Court had to understand the meaning of the word old in the contextn entry in a taxing tariff which readdiscarded, unserviceable or absolute machinery, stores or vehicles including waste productsthe tariff item started with the use of the wide word old, the Court came to the conclusion that "in order to fall within the expression old machinery occurring in the entry, the machinery must be old machinery in the sense that it has become non-functional or non-usable". In other words, not the mere age of the machinery, which would be relevant in the wider sense, but he condition of the machinery analogous to that indicated by the words following it, was considered relevant for the purposes of thed of proceeding on the premise that it is not necessary to look for any reason in a taxing statute, it is necessary to have a closer look at the wording of the proviso. If the proviso had referred only to coated paper, no special object or purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exemption only coated paper manufactured by these factories from the purview of the exemption. But the notification excepts not one but a group of items. If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them again, it may be permissible to give the exceptions their widest latitude. But when four of them - undoubtedly, at least three of them - can be brought under an intelligible classification and it is also conceivable that the government might well have thought that these small scale factories should not be eligible for the concession contemplated by the notification where they manufacture paper catering to industrial purposes, there is a purpose in the limitation prescribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification. In our view, the only reasonable way of interpreting the proviso is by understanding the words coated paper in a narrower sense consistent with the other expressions usedIn the view we have taken it is unnecessary to consider the other contentions urged before us : (i) whether the words "(including waxed paper)" aree of the limitation sought to be placed on the words "coated paper" or they are only intended to make it clear that even paper impregnated with wax will not be entitled to exemption; and (ii) whether, if the notification is capable of two equally plausible interpretations, the one in favour of the subject should be upheld or the one taken by the Tribunal should be confirmed
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MUNICIPAL CORPORATION OF GREATER MUMBAI Vs. M/S SUNBEAM HIGH TECH DEVELOPERS PRIVATE LTD | officer. It has further been observed by the High Court that the reconstruction of the structure on the basis of its order will confer no authenticity on the structure. The third important direction of the High Court provides that if the original structures were constructed without obtaining development permission, the structures reconstructed pursuant to the orders of the Court will also be construed to be constructed without proper development permission. Hence the Corporation can initiate action of demolition of the structures, after following the law laid down in Sopans case (supra). We have been told that this is the regular practice followed in the Bombay High Court, throughout the State of Maharashtra. 15. We are constrained to observe that we cannot approve of such directions. The High Court itself is aware that some of these structures may have been constructed without permission. If that be so, even if the demolition was carried out without giving the second notice, why should the party who has violated the law by raising the construction without obtaining permission be permitted to raise another illegal structure which only has to be razed to the ground, after following the procedure prescribed by law? Why should the Nations wealth be misutilised and misused for raising an illegal construction which eventually has to be demolished? 16. We make it clear that we do not approve the action of the Municipal Corporation or its officials in demolishing the structures without following the procedure prescribed by law, but the relief which has to be given must be in accordance with law and not violative of the law. If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to come up again. If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered from the officers who have acted in violation of law. However, we again reiterate that the illegal structure cannot be permitted to be re- erected. 17. Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally. It must come to a clear-cut finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering. In those cases the High Court, once it comes to the conclusion that the structure which has been demolished was not an illegal structure, may be justified in permitting reconstruction of the structure, but while doing so the Court must clearly indicate the structure it has permitted to be constructed; what will be the length of the structure; what will be its width; what will be its height; which side will the doors and windows face; how many number of storeys are permitted etc. We feel that in most cases the writ court may be unable to answer all these questions. Therefore, it would be prudent to permit the structure to be built in accordance with the existing by-laws. Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built. 18. Blanket orders permitting re-erection will lead to un- planned and haphazard construction. This will cause problems to the general public. Even if the rights of private individuals have been violated in as much as sufficient notice for demolition was not given, in such cases structures erected in violation of the laws cannot be permitted to be re-erected. We must also remember that in all these cases, the High Court has not found that the structures were legal. It has passed the orders only on the ground that the demolition was carried out without due notice. As already indicated above, compensation for demolished structure or even the cost of the new structure to be raised, if any, can be imposed upon the municipal authorities which should be recovered from the erring officials, but in no eventuality should an unplanned structure be permitted to be raised. 19. Times have changed. Technology has advanced. However, the legal fraternity continues to live in a state of status quo. Sopans case (supra) was decided on 09.02.1996. More than two decades have elapsed. The Courts must not be hidebound by old decisions and the law must develop in accordance with changing times. 20. All concerned viz., the State, the Municipal authorities and the High Court need to take note and advantage of advancement in technology. We have been informed that disputes with regard to the dimensions and nature of the structure arise especially in those cases where rural or suburban areas are included at a later stage in the municipalities. Some of these structures have no sanctioned plans. The Development Control and Promotion Regulations for Greater Mumbai, 2034, provide that no permission shall be required to carry out tenantable repairs to the existing buildings which were constructed with the approval of the competent authority, or are in existence since 17.04.1964 in respect of residential structures, and 01.04.1962 in respect of non-residential structures, as required under Section 342 of the MMC Act. We have already noted what is meant by tenantable repairs. This is explained in Section 342 of the MMC Act. Only repairs envisaged in the explanation are permitted to be carried out without permission and all other repairs have to be carried out with permission. Since these old buildings do not have plans it is difficult to find out whether the construction carried out is actually tenantable repairs or the structures are being constructed/reconstructed for which permission is required. 21. There is no difficulty to find a solution to this problem if the State is inclined to do so. | 1[ds]We are not oblivious to the fact that Sub-section (2) of Section 351 does not lay down any timeline in this regard. It was in this context that when no timelines were laid down either for show cause notice or for demolition that the Bombay High Court in Sopans case (supra), fixed two timelines of 15 days each for issuing show cause notice and, thereafter, to take action of demolition. The Legislature intervened and the first period has been curtailed from 15 days to 7 days but the second direction has not been interfered with by the Legislature. Therefore, that judgment continues to hold the field in this regard13. Admittedly, in both the cases the second notice does not comply with the direction given in Sopans case (supra). Therefore, there is no manner of doubt that the requirement with regard to the second notice has not been complied with in either of the cases. As such, the action of demolition without following the procedure prescribed by law is illegalThe second direction given is that before commencing of work of reconstruction, the petitioner shall serve a notice to the designated officer. It has further been observed by the High Court that the reconstruction of the structure on the basis of its order will confer no authenticity on the structure. The third important direction of the High Court provides that if the original structures were constructed without obtaining development permission, the structures reconstructed pursuant to the orders of the Court will also be construed to be constructed without proper development permission. Hence the Corporation can initiate action of demolition of the structures, after following the law laid down in Sopans case (supra). We have been told that this is the regular practice followed in the Bombay High Court, throughout the State of Maharashtra15. We are constrained to observe that we cannot approve of such directions. The High Court itself is aware that some of these structures may have been constructed without permission. If that be so, even if the demolition was carried out without giving the second notice, why should the party who has violated the law by raising the construction without obtaining permission be permitted to raise another illegal structure which only has to be razed to the ground, after following the procedure prescribed by law? Why should the Nations wealth be misutilised and misused for raising an illegal construction which eventually has to be demolished?16. We make it clear that we do not approve the action of the Municipal Corporation or its officials in demolishing the structures without following the procedure prescribed by law, but the relief which has to be given must be in accordance with law and not violative of the law. If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to come up again. If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered froms who have acted in violation of law. However, we again reiterate that the illegal structure cannot be permitted to be re- erected20. All concerned viz., the State, the Municipal authorities and the High Court need to take note and advantage of advancement in technology. We have been informed that disputes with regard to the dimensions and nature of the structure arise especially in those cases where rural or suburban areas are included at a later stage in the municipalities. Some of these structures have no sanctioned plans. The Development Control and Promotion Regulations for Greater Mumbai, 2034, provide that no permission shall be required to carry out tenantable repairs to the existing buildings which were constructed with the approval of the competent authority, or are in existence since 17.04.1964 in respect of residential structures, and 01.04.1962 in respect of non-residential structures, as required under Section 342 of the MMC Act. We have already noted what is meant by tenantable repairs. This is explained in Section 342 of the MMC Act. Only repairs envisaged in the explanation are permitted to be carried out without permission and all other repairs have to be carried out with permission. Since these old buildings do not have plans it is difficult to find out whether the construction carried out is actually tenantable repairs or the structures are being constructed/reconstructed for which permission is required19. Times have changed. Technology has advanced. However, the legal fraternity continues to live in a state of status quo. Sopans case (supra) was decided on 09.02.1996. More than two decades have elapsed. The Courts must not be hidebound by old decisions and the law must develop in accordance with changing times18. Blanket orders permitting re-erection will lead to un- planned and haphazard construction. This will cause problems to the general public. Even if the rights of private individuals have been violated in as much as sufficient notice for demolition was not given, in such cases structures erected in violation of the laws cannot be permitted to be re-erected. We must also remember that in all these cases, the High Court has not found that the structures were legal. It has passed the orders only on the ground that the demolition was carried out without due notice. As already indicated above, compensation for demolished structure or even the cost of the new structure to be raised, if any, can be imposed upon the municipal authorities which should be recovered from the erring officials, but in no eventuality should an unplanned structure be permitted to be raised17. Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally. It must come to a clear-cut finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering. In those cases the High Court, once it comes to the conclusion that the structure which has been demolished was not an illegal structure, may be justified in permitting reconstruction of the structure, but while doing so the Court must clearly indicate the structure it has permitted to be constructed; what will be the length of the structure; what will be its width; what will be its height; which side will the doors and windows face; how many number of storeys are permitted etc. We feel that in most cases the writ court may be unable to answer all these questions. Therefore, it would be prudent to permit the structure to be built in accordance with the existing by-laws. Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built. | 1 | 4,639 | 1,270 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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officer. It has further been observed by the High Court that the reconstruction of the structure on the basis of its order will confer no authenticity on the structure. The third important direction of the High Court provides that if the original structures were constructed without obtaining development permission, the structures reconstructed pursuant to the orders of the Court will also be construed to be constructed without proper development permission. Hence the Corporation can initiate action of demolition of the structures, after following the law laid down in Sopans case (supra). We have been told that this is the regular practice followed in the Bombay High Court, throughout the State of Maharashtra. 15. We are constrained to observe that we cannot approve of such directions. The High Court itself is aware that some of these structures may have been constructed without permission. If that be so, even if the demolition was carried out without giving the second notice, why should the party who has violated the law by raising the construction without obtaining permission be permitted to raise another illegal structure which only has to be razed to the ground, after following the procedure prescribed by law? Why should the Nations wealth be misutilised and misused for raising an illegal construction which eventually has to be demolished? 16. We make it clear that we do not approve the action of the Municipal Corporation or its officials in demolishing the structures without following the procedure prescribed by law, but the relief which has to be given must be in accordance with law and not violative of the law. If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to come up again. If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered from the officers who have acted in violation of law. However, we again reiterate that the illegal structure cannot be permitted to be re- erected. 17. Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally. It must come to a clear-cut finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering. In those cases the High Court, once it comes to the conclusion that the structure which has been demolished was not an illegal structure, may be justified in permitting reconstruction of the structure, but while doing so the Court must clearly indicate the structure it has permitted to be constructed; what will be the length of the structure; what will be its width; what will be its height; which side will the doors and windows face; how many number of storeys are permitted etc. We feel that in most cases the writ court may be unable to answer all these questions. Therefore, it would be prudent to permit the structure to be built in accordance with the existing by-laws. Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built. 18. Blanket orders permitting re-erection will lead to un- planned and haphazard construction. This will cause problems to the general public. Even if the rights of private individuals have been violated in as much as sufficient notice for demolition was not given, in such cases structures erected in violation of the laws cannot be permitted to be re-erected. We must also remember that in all these cases, the High Court has not found that the structures were legal. It has passed the orders only on the ground that the demolition was carried out without due notice. As already indicated above, compensation for demolished structure or even the cost of the new structure to be raised, if any, can be imposed upon the municipal authorities which should be recovered from the erring officials, but in no eventuality should an unplanned structure be permitted to be raised. 19. Times have changed. Technology has advanced. However, the legal fraternity continues to live in a state of status quo. Sopans case (supra) was decided on 09.02.1996. More than two decades have elapsed. The Courts must not be hidebound by old decisions and the law must develop in accordance with changing times. 20. All concerned viz., the State, the Municipal authorities and the High Court need to take note and advantage of advancement in technology. We have been informed that disputes with regard to the dimensions and nature of the structure arise especially in those cases where rural or suburban areas are included at a later stage in the municipalities. Some of these structures have no sanctioned plans. The Development Control and Promotion Regulations for Greater Mumbai, 2034, provide that no permission shall be required to carry out tenantable repairs to the existing buildings which were constructed with the approval of the competent authority, or are in existence since 17.04.1964 in respect of residential structures, and 01.04.1962 in respect of non-residential structures, as required under Section 342 of the MMC Act. We have already noted what is meant by tenantable repairs. This is explained in Section 342 of the MMC Act. Only repairs envisaged in the explanation are permitted to be carried out without permission and all other repairs have to be carried out with permission. Since these old buildings do not have plans it is difficult to find out whether the construction carried out is actually tenantable repairs or the structures are being constructed/reconstructed for which permission is required. 21. There is no difficulty to find a solution to this problem if the State is inclined to do so.
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following the procedure prescribed by law is illegalThe second direction given is that before commencing of work of reconstruction, the petitioner shall serve a notice to the designated officer. It has further been observed by the High Court that the reconstruction of the structure on the basis of its order will confer no authenticity on the structure. The third important direction of the High Court provides that if the original structures were constructed without obtaining development permission, the structures reconstructed pursuant to the orders of the Court will also be construed to be constructed without proper development permission. Hence the Corporation can initiate action of demolition of the structures, after following the law laid down in Sopans case (supra). We have been told that this is the regular practice followed in the Bombay High Court, throughout the State of Maharashtra15. We are constrained to observe that we cannot approve of such directions. The High Court itself is aware that some of these structures may have been constructed without permission. If that be so, even if the demolition was carried out without giving the second notice, why should the party who has violated the law by raising the construction without obtaining permission be permitted to raise another illegal structure which only has to be razed to the ground, after following the procedure prescribed by law? Why should the Nations wealth be misutilised and misused for raising an illegal construction which eventually has to be demolished?16. We make it clear that we do not approve the action of the Municipal Corporation or its officials in demolishing the structures without following the procedure prescribed by law, but the relief which has to be given must be in accordance with law and not violative of the law. If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to come up again. If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, some compensation can be awarded and, in all cases where such compensation is awarded the same should invariably be recovered froms who have acted in violation of law. However, we again reiterate that the illegal structure cannot be permitted to be re- erected20. All concerned viz., the State, the Municipal authorities and the High Court need to take note and advantage of advancement in technology. We have been informed that disputes with regard to the dimensions and nature of the structure arise especially in those cases where rural or suburban areas are included at a later stage in the municipalities. Some of these structures have no sanctioned plans. The Development Control and Promotion Regulations for Greater Mumbai, 2034, provide that no permission shall be required to carry out tenantable repairs to the existing buildings which were constructed with the approval of the competent authority, or are in existence since 17.04.1964 in respect of residential structures, and 01.04.1962 in respect of non-residential structures, as required under Section 342 of the MMC Act. We have already noted what is meant by tenantable repairs. This is explained in Section 342 of the MMC Act. Only repairs envisaged in the explanation are permitted to be carried out without permission and all other repairs have to be carried out with permission. Since these old buildings do not have plans it is difficult to find out whether the construction carried out is actually tenantable repairs or the structures are being constructed/reconstructed for which permission is required19. Times have changed. Technology has advanced. However, the legal fraternity continues to live in a state of status quo. Sopans case (supra) was decided on 09.02.1996. More than two decades have elapsed. The Courts must not be hidebound by old decisions and the law must develop in accordance with changing times18. Blanket orders permitting re-erection will lead to un- planned and haphazard construction. This will cause problems to the general public. Even if the rights of private individuals have been violated in as much as sufficient notice for demolition was not given, in such cases structures erected in violation of the laws cannot be permitted to be re-erected. We must also remember that in all these cases, the High Court has not found that the structures were legal. It has passed the orders only on the ground that the demolition was carried out without due notice. As already indicated above, compensation for demolished structure or even the cost of the new structure to be raised, if any, can be imposed upon the municipal authorities which should be recovered from the erring officials, but in no eventuality should an unplanned structure be permitted to be raised17. Assuming that the structure is not illegal then also the Court will first have to come to a finding that the structure was constructed legally. It must come to a clear-cut finding as to the dimensions of the structure, what area it was covering and which part of the plot it was covering. In those cases the High Court, once it comes to the conclusion that the structure which has been demolished was not an illegal structure, may be justified in permitting reconstruction of the structure, but while doing so the Court must clearly indicate the structure it has permitted to be constructed; what will be the length of the structure; what will be its width; what will be its height; which side will the doors and windows face; how many number of storeys are permitted etc. We feel that in most cases the writ court may be unable to answer all these questions. Therefore, it would be prudent to permit the structure to be built in accordance with the existing by-laws. Directions can be issued to the authorities to issue requisite permission for construction of a legal structure within a time bound period of about 60 days. This may vary from case to case depending upon the nature of the structure and the area where it is being built.
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Surjit Singh Alias Gurmit Singh Vs. State Of Punjab | no specific grudge or enmity with the deceased as he was living outside the village;(iii) there was confusion about the names. the investigation and the appellant had at one time or the other named him as gurmit singh.(iv) the prosecution evidence disclosed that there were three fire shots but jaswinder kaur pw 5 in fir statement ex.pd had not mentioned about the third fire;(v) in the fir hurts of taljit singh are not mentioned.(vi) the recovery of the crime pistol and car- tridges had been effected from gurmit singh, the brother of the appellant and not from the appellant. on these particulars the trial judge held that there was great doubt about the participation of the appellant in the occurrence and held him entitled to the benefit of doubt. 7. The high court turned down all the grounds. The high court termed the reasoning given by the trial judge as implausible. What weighed with the high court was the presence of surjit singh in the village up to 13.5.78 till 4.00 p.m., whereafter he allegedly commenced his journey to join his unit.The high court viewed that it was for the appellant to prove that he left the village at 4.00 p.m. on may 13, 1978 so as to be absent at the time of the occur-rence and then having reached his unit on may 16,1978. the appellant had cited one naib subedar waryam singh as defence witness but gave him up. The two defence witness cited by the defence were merely formal with regard to the sending of certain complaints in the office of senior superintendent of police, jullundur.The evidence of these defence witnesses did not even remotely touch the alibi of the appellant. With regard to the confusion about the name, the high court observed that it would be uncommon and unreasonable for two brothers to be having the same name. the appellant does have a brother named as gurmit singh and yet strangely the appellant assumes his brothers name to be gurmit singh. taljit singh pw 2 had deposed that the appellant has read only up to 4th or 5th class whereas gurmit singh was a matriculate and that when the appellant sought recruitment in the army he gave his name as gurmit singh and utilised the matriculation certificate of his brother gurmit singh. he also de- posed that later when papers for verification had come to the village the appellant had approached mohinder singh deceased that he should help him by telling the enquiry officer that his name was gurmit singh and he was a matriculate. this evidence was totally overlooked by the trial judge for reasons we cannot understand.The high court used this evidence against the appellant.The high court had gone on to observe, and in over view rightly, that the appellant was known as surjit singh and was known as such even for the purpose of army records. he went with the assumed name gurmit singh, for the reasons explained by the prosecution in the statement of taljit singh pw 2.It is noticeable that in the appeal against his acquittal, service of the appellant was effected in the name of surjit singh alias gurmit singh through the military authorities. The high court observed that this particular was suggestive that in the force as well he was known as surjit singh. the appellant having taken up a positive plea of alibi, he could prove it from his travel papers which have been checked and suitably endorsed upon by the railway authorities and/or the army authorities on his joining his unit.the appellant miserably failed to discharge that burden. In this situation the aforesaid misdescription/ omissions in the fir about the number of shots fired and the absence of taljit singhs injuries or the appellant being not described as a military man become of lesser importance. First information report is not an encyclopedia of the entire case and is even not a substantive piece of evidence. It has value, no doubt, but only for the purpose of corroborating or contradicting the maker. Here the maker was a young woman who had lost her husband before her very eyes. The omission or misdescription of these details in the fir which was recorded most promptly, within three hours of the occurrence, would not tell on the prosecution case or the statements of the eye- witnesses with regard to the participation of the appellant in the crime.He had taken a leading and prominent part in spearheading and committing it. For these reasons, we are of the view that the high court was right in convicting the appellant on giving cogent reasons to demolish the reasoning of the trial judge and adding thereto reasons of its own. 8. To be fair to the learned counsel for the appellant, we may mention that he ventured to argue that the evidence regarding the matching of the crime bullet shells with the pistol recovered was not convincing, more so when the .303 pistol, the alleged crime weapon, was recovered from gurmit singh, co-accused. it is noteworthy that gurmit singh, co- accused, stands convicted under the arms act for being in possession of that pistol. this aspect of the case cannot be a substitute to the eye-witness account or the plea taken by the appellant. had the presence of the two witnesses, that is, jaswinder kaur pw-5 and taljit singh pw-2 at the scene of the occurrence been doubted, the recovery of the weapon of offence and its connection with the empty shells recovered at the spot would have assumed some significance. when the two eye-witness are natural witnesses of the crime, one being the young wife who would normally be in the company of the husband at 10.30 p.m. on a summer night and the other the nephew of the deceased who had suffered grevious in- juries in the occurrence and was thus a stamped witness, not much importance is to be attached to this aspect of the case. the venture is futile. 9. th | 0[ds]7. The high court turned down all the grounds. The high court termed the reasoning given by the trial judge as implausible. What weighed with the high court was the presence of surjit singh in the village up to 13.5.78 till 4.00 p.m., whereafter he allegedly commenced his journey to join his unit.The high court viewed that it was for the appellant to prove that he left the village at 4.00 p.m. on may 13, 1978 so as to be absent at the time of the occur-rence and then having reached his unit on may 16,1978. the appellant had cited one naib subedar waryam singh as defence witness but gave him up. The two defence witness cited by the defence were merely formal with regard to the sending of certain complaints in the office of senior superintendent of police, jullundur.The evidence of these defence witnesses did not even remotely touch the alibi of the appellant. With regard to the confusion about the name, the high court observed that it would be uncommon and unreasonable for two brothers to be having the same name. the appellant does have a brother named as gurmit singh and yet strangely the appellant assumes his brothers name to be gurmit singh. taljit singh pw 2 had deposed that the appellant has read only up to 4th or 5th class whereas gurmit singh was a matriculate and that when the appellant sought recruitment in the army he gave his name as gurmit singh and utilised the matriculation certificate of his brother gurmit singh. he also de- posed that later when papers for verification had come to the village the appellant had approached mohinder singh deceased that he should help him by telling the enquiry officer that his name was gurmit singh and he was a matriculate. this evidence was totally overlooked by the trial judge for reasons we cannot understand.The high court used this evidence against the appellant.The high court had gone on to observe, and in over view rightly, that the appellant was known as surjit singh and was known as such even for the purpose of army records. he went with the assumed name gurmit singh, for the reasons explained by the prosecution in the statement of taljit singh pw 2.It is noticeable that in the appeal against his acquittal, service of the appellant was effected in the name of surjit singh alias gurmit singh through the military authorities. The high court observed that this particular was suggestive that in the force as well he was known as surjit singh. the appellant having taken up a positive plea of alibi, he could prove it from his travel papers which have been checked and suitably endorsed upon by the railway authorities and/or the army authorities on his joining his unit.the appellant miserably failed to discharge that burden. In this situation the aforesaid misdescription/ omissions in the fir about the number of shots fired and the absence of taljit singhs injuries or the appellant being not described as a military man become of lesser importance. First information report is not an encyclopedia of the entire case and is even not a substantive piece of evidence. It has value, no doubt, but only for the purpose of corroborating or contradicting the maker. Here the maker was a young woman who had lost her husband before her very eyes. The omission or misdescription of these details in the fir which was recorded most promptly, within three hours of the occurrence, would not tell on the prosecution case or the statements of the eye- witnesses with regard to the participation of the appellant in the crime.He had taken a leading and prominent part in spearheading and committing it. For these reasons, we are of the view that the high court was right in convicting the appellant on giving cogent reasons to demolish the reasoning of the trial judge and adding thereto reasons of its own.To be fair to the learned counsel for the appellant, we may mention that he ventured to argue that the evidence regarding the matching of the crime bullet shells with the pistol recovered was not convincing, more so when the .303 pistol, the alleged crime weapon, was recovered from gurmit singh, co-accused. it is noteworthy that gurmit singh, co- accused, stands convicted under the arms act for being in possession of that pistol. this aspect of the case cannot be a substitute to the eye-witness account or the plea taken by the appellant. had the presence of the two witnesses, that is, jaswinder kaur pw-5 and taljit singh pw-2 at the scene of the occurrence been doubted, the recovery of the weapon of offence and its connection with the empty shells recovered at the spot would have assumed some significance. when the two eye-witness are natural witnesses of the crime, one being the young wife who would normally be in the company of the husband at 10.30 p.m. on a summer night and the other the nephew of the deceased who had suffered grevious in- juries in the occurrence and was thus a stamped witness, not much importance is to be attached to this aspect of the case. the venture is futile. | 0 | 2,407 | 923 | ### Instruction:
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no specific grudge or enmity with the deceased as he was living outside the village;(iii) there was confusion about the names. the investigation and the appellant had at one time or the other named him as gurmit singh.(iv) the prosecution evidence disclosed that there were three fire shots but jaswinder kaur pw 5 in fir statement ex.pd had not mentioned about the third fire;(v) in the fir hurts of taljit singh are not mentioned.(vi) the recovery of the crime pistol and car- tridges had been effected from gurmit singh, the brother of the appellant and not from the appellant. on these particulars the trial judge held that there was great doubt about the participation of the appellant in the occurrence and held him entitled to the benefit of doubt. 7. The high court turned down all the grounds. The high court termed the reasoning given by the trial judge as implausible. What weighed with the high court was the presence of surjit singh in the village up to 13.5.78 till 4.00 p.m., whereafter he allegedly commenced his journey to join his unit.The high court viewed that it was for the appellant to prove that he left the village at 4.00 p.m. on may 13, 1978 so as to be absent at the time of the occur-rence and then having reached his unit on may 16,1978. the appellant had cited one naib subedar waryam singh as defence witness but gave him up. The two defence witness cited by the defence were merely formal with regard to the sending of certain complaints in the office of senior superintendent of police, jullundur.The evidence of these defence witnesses did not even remotely touch the alibi of the appellant. With regard to the confusion about the name, the high court observed that it would be uncommon and unreasonable for two brothers to be having the same name. the appellant does have a brother named as gurmit singh and yet strangely the appellant assumes his brothers name to be gurmit singh. taljit singh pw 2 had deposed that the appellant has read only up to 4th or 5th class whereas gurmit singh was a matriculate and that when the appellant sought recruitment in the army he gave his name as gurmit singh and utilised the matriculation certificate of his brother gurmit singh. he also de- posed that later when papers for verification had come to the village the appellant had approached mohinder singh deceased that he should help him by telling the enquiry officer that his name was gurmit singh and he was a matriculate. this evidence was totally overlooked by the trial judge for reasons we cannot understand.The high court used this evidence against the appellant.The high court had gone on to observe, and in over view rightly, that the appellant was known as surjit singh and was known as such even for the purpose of army records. he went with the assumed name gurmit singh, for the reasons explained by the prosecution in the statement of taljit singh pw 2.It is noticeable that in the appeal against his acquittal, service of the appellant was effected in the name of surjit singh alias gurmit singh through the military authorities. The high court observed that this particular was suggestive that in the force as well he was known as surjit singh. the appellant having taken up a positive plea of alibi, he could prove it from his travel papers which have been checked and suitably endorsed upon by the railway authorities and/or the army authorities on his joining his unit.the appellant miserably failed to discharge that burden. In this situation the aforesaid misdescription/ omissions in the fir about the number of shots fired and the absence of taljit singhs injuries or the appellant being not described as a military man become of lesser importance. First information report is not an encyclopedia of the entire case and is even not a substantive piece of evidence. It has value, no doubt, but only for the purpose of corroborating or contradicting the maker. Here the maker was a young woman who had lost her husband before her very eyes. The omission or misdescription of these details in the fir which was recorded most promptly, within three hours of the occurrence, would not tell on the prosecution case or the statements of the eye- witnesses with regard to the participation of the appellant in the crime.He had taken a leading and prominent part in spearheading and committing it. For these reasons, we are of the view that the high court was right in convicting the appellant on giving cogent reasons to demolish the reasoning of the trial judge and adding thereto reasons of its own. 8. To be fair to the learned counsel for the appellant, we may mention that he ventured to argue that the evidence regarding the matching of the crime bullet shells with the pistol recovered was not convincing, more so when the .303 pistol, the alleged crime weapon, was recovered from gurmit singh, co-accused. it is noteworthy that gurmit singh, co- accused, stands convicted under the arms act for being in possession of that pistol. this aspect of the case cannot be a substitute to the eye-witness account or the plea taken by the appellant. had the presence of the two witnesses, that is, jaswinder kaur pw-5 and taljit singh pw-2 at the scene of the occurrence been doubted, the recovery of the weapon of offence and its connection with the empty shells recovered at the spot would have assumed some significance. when the two eye-witness are natural witnesses of the crime, one being the young wife who would normally be in the company of the husband at 10.30 p.m. on a summer night and the other the nephew of the deceased who had suffered grevious in- juries in the occurrence and was thus a stamped witness, not much importance is to be attached to this aspect of the case. the venture is futile. 9. th
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0
### Explanation:
7. The high court turned down all the grounds. The high court termed the reasoning given by the trial judge as implausible. What weighed with the high court was the presence of surjit singh in the village up to 13.5.78 till 4.00 p.m., whereafter he allegedly commenced his journey to join his unit.The high court viewed that it was for the appellant to prove that he left the village at 4.00 p.m. on may 13, 1978 so as to be absent at the time of the occur-rence and then having reached his unit on may 16,1978. the appellant had cited one naib subedar waryam singh as defence witness but gave him up. The two defence witness cited by the defence were merely formal with regard to the sending of certain complaints in the office of senior superintendent of police, jullundur.The evidence of these defence witnesses did not even remotely touch the alibi of the appellant. With regard to the confusion about the name, the high court observed that it would be uncommon and unreasonable for two brothers to be having the same name. the appellant does have a brother named as gurmit singh and yet strangely the appellant assumes his brothers name to be gurmit singh. taljit singh pw 2 had deposed that the appellant has read only up to 4th or 5th class whereas gurmit singh was a matriculate and that when the appellant sought recruitment in the army he gave his name as gurmit singh and utilised the matriculation certificate of his brother gurmit singh. he also de- posed that later when papers for verification had come to the village the appellant had approached mohinder singh deceased that he should help him by telling the enquiry officer that his name was gurmit singh and he was a matriculate. this evidence was totally overlooked by the trial judge for reasons we cannot understand.The high court used this evidence against the appellant.The high court had gone on to observe, and in over view rightly, that the appellant was known as surjit singh and was known as such even for the purpose of army records. he went with the assumed name gurmit singh, for the reasons explained by the prosecution in the statement of taljit singh pw 2.It is noticeable that in the appeal against his acquittal, service of the appellant was effected in the name of surjit singh alias gurmit singh through the military authorities. The high court observed that this particular was suggestive that in the force as well he was known as surjit singh. the appellant having taken up a positive plea of alibi, he could prove it from his travel papers which have been checked and suitably endorsed upon by the railway authorities and/or the army authorities on his joining his unit.the appellant miserably failed to discharge that burden. In this situation the aforesaid misdescription/ omissions in the fir about the number of shots fired and the absence of taljit singhs injuries or the appellant being not described as a military man become of lesser importance. First information report is not an encyclopedia of the entire case and is even not a substantive piece of evidence. It has value, no doubt, but only for the purpose of corroborating or contradicting the maker. Here the maker was a young woman who had lost her husband before her very eyes. The omission or misdescription of these details in the fir which was recorded most promptly, within three hours of the occurrence, would not tell on the prosecution case or the statements of the eye- witnesses with regard to the participation of the appellant in the crime.He had taken a leading and prominent part in spearheading and committing it. For these reasons, we are of the view that the high court was right in convicting the appellant on giving cogent reasons to demolish the reasoning of the trial judge and adding thereto reasons of its own.To be fair to the learned counsel for the appellant, we may mention that he ventured to argue that the evidence regarding the matching of the crime bullet shells with the pistol recovered was not convincing, more so when the .303 pistol, the alleged crime weapon, was recovered from gurmit singh, co-accused. it is noteworthy that gurmit singh, co- accused, stands convicted under the arms act for being in possession of that pistol. this aspect of the case cannot be a substitute to the eye-witness account or the plea taken by the appellant. had the presence of the two witnesses, that is, jaswinder kaur pw-5 and taljit singh pw-2 at the scene of the occurrence been doubted, the recovery of the weapon of offence and its connection with the empty shells recovered at the spot would have assumed some significance. when the two eye-witness are natural witnesses of the crime, one being the young wife who would normally be in the company of the husband at 10.30 p.m. on a summer night and the other the nephew of the deceased who had suffered grevious in- juries in the occurrence and was thus a stamped witness, not much importance is to be attached to this aspect of the case. the venture is futile.
|
R. S. Sial Vs. The State Of U.P. & Ors | punishments, i.e. dismissal, removal or reduction in rank (see 1958 SCR 828 = (AIR 1958 SC 36 ) (supra); Champaklal v. Union of India, (1964) 5 SCR 190 = (AIR 1964 SC 1854 ) and Appar Apar Singh v. State of Punjab, (1971) 2 SCR 890 ).10. The test for attracting Article 311 (2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the Court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order (see State of Bihar v. Shiva Bhikshuk Mishra, (1971) 2 SCR 191 = (AIR 1971 SC 1011 )).11. In the case of State of Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234 = (AIR 1968 SC 1089 = 1968 Lab IC 1286) this Court enunciated the following propositions which have to be borne in mind :"(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.(2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.(3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain weather the public servant should be retained in service, does not attract the operation of article 311 of the constitution.(5) If there be a full-scale departmental enquiry envisaged by Article 311 i.e., an Enquiry Officer is appointed a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article."12. Keeping in view the principles enunciated above, we have looked at the facts of the case and are not satisfied that the order of reversion of the appellant was by way of punishment. It has already been mentioned above that no aspersion was cast on the appellant in the order of reversion and as a result of that order no stigma attaches to his name. The appellant was merely officiating in a higher post and the impugned order had the effect of reverting him to his substantive post. The attendant circumstances to which our attention has been invited with a view to show that the order of reversion was by way of punishment are two letters dated July 12, 1967.One of those letters was addressed by the Deputy Secretary. Vigilance Department to the Director of vigilance wherein reference was made to the report of the officers of the Intelligence and Evaluation Gell. It was requested that an open enquiry might be made into the allegations of involvement of the appellant in a matter relating to the supply of non-genuine and sub-standard motor parts by a Delhi dealer. In the other letter addressed to the Secretary to Uttar Pradesh Government. Transport Department a request was made by the Deputy Secretary. Vigilance Department that in case the appellant was not confirmed on the post of General Manager, he might be reverted since an enquiry made by the CID into the allegations of corruption against the appellant had revealed that there was substance in those allegations. The above letters would show that the authorities concerned came to the conclusion that, pending the holding of an open enquiry into the charges of corruption against the appellant, he should not be allowed to officiate in a higher post. It cannot, in our opinion, be inferred therefrom that the reversion of the appellant was by way of punishment. All that can be said is that the contemplated enquiry into the charges of corruption against the appellant provided the motive for the reversion of the appellant. The existence of such a motive cannot, in our opinion, vitiate the order for the reversion of the appellant. It may be taken to be well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under the contract or the rules to terminate the service the motive operating on the mind of the Government is wholly immaterial (see Union of India v. R. S. Dhaba, (1969) 3 SCC 603 = (AIR 1969 NSC 21). The same rule would hold good if the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity.13. Application was filed during the pendency of the appeal on behalf of the appellant that this Court might take into account additional documents. These documents were in existence at the time the appellant filed the petition in the High Court. The petition in the High Court remained pending for more than a year. We are not impressed by the plea taken on behalf of the appellant that he could not trace these documents with due diligence and has been able to trace them now. The documents in question are not of such a nature as are needed to enable us to pronounce this judgment. In the circumstances, the application filed by the appellant for taking on record additional documents in appeal is rejected. | 0[ds]The above contentions have been controverted by Mr. Dikshit of behalf of the respondent-State. It is, in our opinion, not necessary to go into the first contention of Mr. Gupte because we find that the order of reversion of the appellant cannot be said to have been made by way of punishment.Keeping in view the principles enunciated above, we have looked at the facts of the case and are not satisfied that the order of reversion of the appellant was by way of punishment. It has already been mentioned above that no aspersion was cast on the appellant in the order of reversion and as a result of that order no stigma attaches to his name. The appellant was merely officiating in a higher post and the impugned order had the effect of reverting him to his substantive post. The attendant circumstances to which our attention has been invited with a view to show that the order of reversion was by way of punishment are two letters dated July 12, 1967.One of those letters was addressed by the Deputy Secretary. Vigilance Department to the Director of vigilance wherein reference was made to the report of the officers of the Intelligence and Evaluation Gell. It was requested that an open enquiry might be made into the allegations of involvement of the appellant in a matter relating to the supply of non-genuine and sub-standard motor parts by a Delhi dealer. In the other letter addressed to the Secretary to Uttar Pradesh Government. Transport Department a request was made by the Deputy Secretary. Vigilance Department that in case the appellant was not confirmed on the post of General Manager, he might be reverted since an enquiry made by the CID into the allegations of corruption against the appellant had revealed that there was substance in those allegations. The above letters would show that the authorities concerned came to the conclusion that, pending the holding of an open enquiry into the charges of corruption against the appellant, he should not be allowed to officiate in a higher post. It cannot, in our opinion, be inferred therefrom that the reversion of the appellant was by way of punishment. All that can be said is that the contemplated enquiry into the charges of corruption against the appellant provided the motive for the reversion of the appellant. The existence of such a motive cannot, in our opinion, vitiate the order for the reversion of the appellant. It may be taken to be well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under the contract or the rules to terminate the service the motive operating on the mind of the Government is whollyApplication was filed during the pendency of the appeal on behalf of the appellant that this Court might take into account additional documents. These documents were in existence at the time the appellant filed the petition in the High Court. The petition in the High Court remained pending for more than a year. We are not impressed by the plea taken on behalf of the appellant that he could not trace these documents with due diligence and has been able to trace them now. The documents in question are not of such a nature as are needed to enable us to pronounce this judgment. In the circumstances, the application filed by the appellant for taking on record additional documents in appeal is rejected.Appointment to a post on an officiating basis is, from the nature of employment, itself of a transitory character and in the absence of any contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment is that it is terminable at any time. The Government servant so appointed acquires no right to the post. But if the order entails or provides for forfeiture of his pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstances may indicate that though in form, the Government had purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty (see Parshotam Lal Dhingra v. Union of India, 1958 SCR 828 = (AIR 1958 SC 36 ) and Union of India v. Gajindra Singh, (1972) 3 SCR 660 = (1972 Lab IC 665)).9. Officiating and temporary Government servants are also entitled to the protection of Art. 311 as permanent Government servants if the Government takes action against them by meeting out one of the punishments, i.e. dismissal, removal or reduction in rank (see 1958 SCR 828 = (AIR 1958 SC 36 ) (supra); Champaklal v. Union of India, (1964) 5 SCR 190 = (AIR 1964 SC 1854 ) and Appar Apar Singh v. State of Punjab, (1971) 2 SCR 890 ).10. The test for attracting Article 311 (2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the Court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order (see State of Bihar v. Shiva Bhikshuk Mishra, (1971) 2 SCR 191 = (AIR 1971 SC 1011 )).11. In the case of State of Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234 = (AIR 1968 SC 1089 = 1968 Lab IC 1286) this Court enunciated the following propositions which have to be borne in mindThe services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.(2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.(3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain weather the public servant should be retained in service, does not attract the operation of article 311 of the constitution.(5) If there be adepartmental enquiry envisaged by Article 311 i.e., an Enquiry Officer is appointed a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.g in view the principles enunciated above, we have looked at the facts of the case and are not satisfied that the order of reversion of the appellant was by way of punishment. It has already been mentioned above that no aspersion was cast on the appellant in the order of reversion and as a result of that order no stigma attaches to his name. The appellant was merely officiating in a higher post and the impugned order had the effect of reverting him to his substantive post. The attendant circumstances to which our attention has been invited with a view to show that the order of reversion was by way of punishment are two letters dated July 12, 1967.One of those letters was addressed by the Deputy Secretary. Vigilance Department to the Director of vigilance wherein reference was made to the report of the officers of the Intelligence and Evaluation Gell. It was requested that an open enquiry might be made into the allegations of involvement of the appellant in a matter relating to the supply ofrd motor parts by a Delhi dealer. In the other letter addressed to the Secretary to Uttar Pradesh Government. Transport Department a request was made by the Deputy Secretary. Vigilance Department that in case the appellant was not confirmed on the post of General Manager, he might be reverted since an enquiry made by the CID into the allegations of corruption against the appellant had revealed that there was substance in those allegations. The above letters would show that the authorities concerned came to the conclusion that, pending the holding of an open enquiry into the charges of corruption against the appellant, he should not be allowed to officiate in a higher post. It cannot, in our opinion, be inferred therefrom that the reversion of the appellant was by way of punishment. All that can be said is that the contemplated enquiry into the charges of corruption against the appellant provided the motive for the reversion of the appellant. The existence of such a motive cannot, in our opinion, vitiate the order for the reversion of the appellant. It may be taken to be well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under the contract or the rules to terminate the service the motive operating on the mind of the Government is whollyimmaterial (see Union of India v. R. S. Dhaba, (1969) 3 SCC 603 = (AIR 1969 NSC 21). The same rule would hold good if the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity. | 0 | 2,400 | 1,825 | ### Instruction:
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punishments, i.e. dismissal, removal or reduction in rank (see 1958 SCR 828 = (AIR 1958 SC 36 ) (supra); Champaklal v. Union of India, (1964) 5 SCR 190 = (AIR 1964 SC 1854 ) and Appar Apar Singh v. State of Punjab, (1971) 2 SCR 890 ).10. The test for attracting Article 311 (2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the Court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order (see State of Bihar v. Shiva Bhikshuk Mishra, (1971) 2 SCR 191 = (AIR 1971 SC 1011 )).11. In the case of State of Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234 = (AIR 1968 SC 1089 = 1968 Lab IC 1286) this Court enunciated the following propositions which have to be borne in mind :"(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.(2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.(3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain weather the public servant should be retained in service, does not attract the operation of article 311 of the constitution.(5) If there be a full-scale departmental enquiry envisaged by Article 311 i.e., an Enquiry Officer is appointed a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article."12. Keeping in view the principles enunciated above, we have looked at the facts of the case and are not satisfied that the order of reversion of the appellant was by way of punishment. It has already been mentioned above that no aspersion was cast on the appellant in the order of reversion and as a result of that order no stigma attaches to his name. The appellant was merely officiating in a higher post and the impugned order had the effect of reverting him to his substantive post. The attendant circumstances to which our attention has been invited with a view to show that the order of reversion was by way of punishment are two letters dated July 12, 1967.One of those letters was addressed by the Deputy Secretary. Vigilance Department to the Director of vigilance wherein reference was made to the report of the officers of the Intelligence and Evaluation Gell. It was requested that an open enquiry might be made into the allegations of involvement of the appellant in a matter relating to the supply of non-genuine and sub-standard motor parts by a Delhi dealer. In the other letter addressed to the Secretary to Uttar Pradesh Government. Transport Department a request was made by the Deputy Secretary. Vigilance Department that in case the appellant was not confirmed on the post of General Manager, he might be reverted since an enquiry made by the CID into the allegations of corruption against the appellant had revealed that there was substance in those allegations. The above letters would show that the authorities concerned came to the conclusion that, pending the holding of an open enquiry into the charges of corruption against the appellant, he should not be allowed to officiate in a higher post. It cannot, in our opinion, be inferred therefrom that the reversion of the appellant was by way of punishment. All that can be said is that the contemplated enquiry into the charges of corruption against the appellant provided the motive for the reversion of the appellant. The existence of such a motive cannot, in our opinion, vitiate the order for the reversion of the appellant. It may be taken to be well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under the contract or the rules to terminate the service the motive operating on the mind of the Government is wholly immaterial (see Union of India v. R. S. Dhaba, (1969) 3 SCC 603 = (AIR 1969 NSC 21). The same rule would hold good if the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity.13. Application was filed during the pendency of the appeal on behalf of the appellant that this Court might take into account additional documents. These documents were in existence at the time the appellant filed the petition in the High Court. The petition in the High Court remained pending for more than a year. We are not impressed by the plea taken on behalf of the appellant that he could not trace these documents with due diligence and has been able to trace them now. The documents in question are not of such a nature as are needed to enable us to pronounce this judgment. In the circumstances, the application filed by the appellant for taking on record additional documents in appeal is rejected.
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the substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstances may indicate that though in form, the Government had purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty (see Parshotam Lal Dhingra v. Union of India, 1958 SCR 828 = (AIR 1958 SC 36 ) and Union of India v. Gajindra Singh, (1972) 3 SCR 660 = (1972 Lab IC 665)).9. Officiating and temporary Government servants are also entitled to the protection of Art. 311 as permanent Government servants if the Government takes action against them by meeting out one of the punishments, i.e. dismissal, removal or reduction in rank (see 1958 SCR 828 = (AIR 1958 SC 36 ) (supra); Champaklal v. Union of India, (1964) 5 SCR 190 = (AIR 1964 SC 1854 ) and Appar Apar Singh v. State of Punjab, (1971) 2 SCR 890 ).10. The test for attracting Article 311 (2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the Court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order (see State of Bihar v. Shiva Bhikshuk Mishra, (1971) 2 SCR 191 = (AIR 1971 SC 1011 )).11. In the case of State of Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234 = (AIR 1968 SC 1089 = 1968 Lab IC 1286) this Court enunciated the following propositions which have to be borne in mindThe services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.(2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.(3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain weather the public servant should be retained in service, does not attract the operation of article 311 of the constitution.(5) If there be adepartmental enquiry envisaged by Article 311 i.e., an Enquiry Officer is appointed a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.g in view the principles enunciated above, we have looked at the facts of the case and are not satisfied that the order of reversion of the appellant was by way of punishment. It has already been mentioned above that no aspersion was cast on the appellant in the order of reversion and as a result of that order no stigma attaches to his name. The appellant was merely officiating in a higher post and the impugned order had the effect of reverting him to his substantive post. The attendant circumstances to which our attention has been invited with a view to show that the order of reversion was by way of punishment are two letters dated July 12, 1967.One of those letters was addressed by the Deputy Secretary. Vigilance Department to the Director of vigilance wherein reference was made to the report of the officers of the Intelligence and Evaluation Gell. It was requested that an open enquiry might be made into the allegations of involvement of the appellant in a matter relating to the supply ofrd motor parts by a Delhi dealer. In the other letter addressed to the Secretary to Uttar Pradesh Government. Transport Department a request was made by the Deputy Secretary. Vigilance Department that in case the appellant was not confirmed on the post of General Manager, he might be reverted since an enquiry made by the CID into the allegations of corruption against the appellant had revealed that there was substance in those allegations. The above letters would show that the authorities concerned came to the conclusion that, pending the holding of an open enquiry into the charges of corruption against the appellant, he should not be allowed to officiate in a higher post. It cannot, in our opinion, be inferred therefrom that the reversion of the appellant was by way of punishment. All that can be said is that the contemplated enquiry into the charges of corruption against the appellant provided the motive for the reversion of the appellant. The existence of such a motive cannot, in our opinion, vitiate the order for the reversion of the appellant. It may be taken to be well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influences the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under the contract or the rules to terminate the service the motive operating on the mind of the Government is whollyimmaterial (see Union of India v. R. S. Dhaba, (1969) 3 SCC 603 = (AIR 1969 NSC 21). The same rule would hold good if the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity.
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